Slide 1

Welcome!

Denver Regional Conference

July 30, 20151525 Sherman St - Rm 104Denver CO 80203

LOGISTICSRestrooms Around the Corner- Across from Caf Basement Same Location

Informal Atmosphere Ask Questions as We Go Repeat Questions - So everyone can Hear

Cell Phone Volume Lobby Area for Calls

Smoking Area Out the Door to the Left Between Buildings

Breaks/Lunch Buffet Style in the Lobby

AgendaGreg IntroductionsGreg Who?Bob Jaros SCO VISIONGreg CCS VisionHistory Of CCSCCS Staff MembersStephanie/Julie EclipticsGreg/Cheryl Collections Greg Client Responsibilities Greg CCS ResourcesGreg Offset ProgramsDawn/Melissa Legal SuitsDawn/Melissa BK/DEC/Tax Offsets/Judgments/Backup DocumentationDawn/Melissa How Would You Rule ?Machol/Johannes LegalGreg Process/Rules-Cancel/Adjust/Ecliptics/WRO CommunicationsTeam Other DPA Resources/Wrap-up/Questions/Happy Trails

IntroductionsWho are You? Whats Your Title ?

What Agency are you from?

How Long have you Been There?

Whats the Best thing about Working There?

If you had a 3 week all expenses paid Vacation anywhere in the World for you and your entire family, Where would you go?

Who ?? Who has Been to the Most CCS Regional Conferences?

Who Came the Greatest Distance?

Which Agency has the Most Attendees here?

Who Carpooled?

Who came Last Night?

Who is Staying over Tonight? Through the Weekend?

CCS ColoradoBob JarosState ControllerVision for DPA / SCO / CCS

CCS ColoradoGreg MechemCentral Collection Services

ManagerVision for CCS

CCS VisionProjects:New Collection SystemFocus: Collecting $$Customer Service Work All Accounts

The Beginning of CCS

1975 CRS 24-30-202.4 requires State Controller to assist in the recovery of delinquent debts

1985 Tax-Offset is added to collection process

1987 - Central Collections moves to Division of Central Services

The Beginning of CCS1992 State agencies are required to assign accounts to Central Collections

2002 - Central Collections moves to Division of Finance & Procurement

2007 - CCS granted authority to add collection costs to all accounts create AD client codes

July 2014 - CCS moves to State Controllers Office Essential Collections StaffOPERATIONS TEAMGREG ManagerCHERYL Collections SupervisorESTELA Accounting Supervisor KEN Systems AdministratorDAWN Legal CoordinatorSTEPHANIE Administrative Support/Consumer Customer Service/Ecliptics

ACCOUNTING TEAMTHERESA Revenue AccountantJESSIE Forward Liaison JULIE Client Cust Service/EclipticsLORI Cancellations/Projects

COLLECTION TEAMSAM Higher EducationMIKE Labor & EmploymentLUCIA Higher EducationJOYCE Labor & EmploymentKENDELL Higher EducationSANDRA Political Subdivisions JUDY Judicial/CorrectionsMARSHA Political Subdivisions

CCS EclipticsJulie SchipperStephanie Parsons

Developing & Implementing Standard Guidelines To Improve EfficiencyOnline Account ManagementEcliptics Place New Accounts

Ecliptics Place New Accounts

Ecliptics Place New Accounts

Always use the AD client code.Use the last known good address.

If you dont know a phone number or SSN, leave it blank.Ecliptics Place New Accounts

Dont forget to click Process PendingClick Search to view a list of new placements in your pending queue.Ecliptics Upload Accounts

Adding a description helps in our collection efforts and reduces backup requests!Ecliptics Upload Accounts

Ecliptics Upload Accounts

Ecliptics Search for Accounts

Ecliptics Search for Accounts

If your agency assigned more than one account you might see a packet number that you can click on to view all accounts in the packet.

Ecliptics Account Detail Tabs

Ecliptics Account Detail Tabs

Ecliptics Account Detail Tabs

Ecliptics Account Detail Tabs

Ecliptics Account Detail Tabs

Ecliptics Account Detail Tabs

Ecliptics Account Detail Tabs

Ecliptics Add Payment

Ecliptics Add Payment

Ecliptics Increase Adjustment

Other options availableEcliptics Decrease Adjustment

Ecliptics Request Cancellation

Ecliptics Request Cancellation

34Ecliptics Mass Cancellation

You can use the client inventory report to request a mass cancellation.

Please always include the CCS account number.

The status code is also required. For example, we may need to recall accounts from forward collection agencies or legal.Ecliptics Retrieve Statements

Ecliptics Retrieve Statements

Ecliptics Retrieve Statements

Select your client code(s) in the Client Number drop-down menu.Ecliptics Inventory Reports

Ecliptics Inventory ReportsThis report is set up to show accounts that have had payments within 30 days. You can change the date range to meet your requirements.Ecliptics Write Off Reports

Ecliptics Write Off Reports

You can delete rows, but please dont delete columns.Type your name in the appropriate spaces.Make sure the write off is signed by the appropriate member of your agency.Send the signed Excel document to CCS via Ecliptics message to: "Write Off Accounts CCS"

Ecliptics Backup Requests

NEW in FY16!Ecliptics Backup Requests

Ecliptics Upload Back Up

Make sure backup is sufficient to prove the debt in a court of law.Insufficient or incorrect backup will not make it through a tax offset hearing.Please provide backup in a timely manner 3-5 business days.If backup cannot be provided, please cancel the account. (It can always be reassigned later if you locate documents.)

Ecliptics Encrypted Messages

Click New Messages to Compose a new message.

Click Manage Messages to view older messages youve received.Ecliptics Encrypted Messages

Ecliptics is set up for security, so all messages are sent secure and encrypted. We cant see if you send the message to more than one person, so make sure to either mention everyone in the greeting or note it in a CC. Also no record of sent or received, once deleted.If its confidential, use EclipticsOtherwise, use Google

Thanks!ESSENTIAL Management

Life Cycle of Collections Account Successful Collections

Working Together To Improve Efficiency

Cheryl DePriest Greg Mechem

What happens once an account is assigned?

SHOW ME THE MONEY ! ! !

CLIENT RESPONSIBILITIES HELP US HELP YOUExpectationsProcess Statements When ReceivedPost Payments to Your System Review Inventory Reports Confirm Validity of AccountVerify Balances Correct Available Backup Documentation Submit PayDirects Immediately Report Discrepancies Right AwayInclude all Information at AssignmentEnter Notes In Comment Fields

ESSENTIAL Management Life Cycle of Collections Account Ways To Send New AccountsOn-Line Through Ecliptics, Customized New Account Spreadsheet flat ASCII File Format

Accounts Are Loaded Into SystemCollection Costs Are AddedInterest Rate Added, If AppropriateCheck For Correct Address Check SSN / Bankruptcy / DeceasedAccount SCORED Bronze, Silver, Gold, Platinum

Notice Series Initiated

Credit Bureau Reporting After 30 Day Dispute PeriodCOMPREHENSIVE ServicesCollection Strategy

Identify The DebtorIdentify Self Confirm/Update Demographic Information Request Payment In Full Psychological Pause, Deafening Silence Can Be Very UsefulDiscover Problem Of Non-Payment Work Together To Find A Reasonable Solution Close The Call Confirm Agreements and Actions

COMPREHENSIVE ServicesPrioritized Collection Activity

Review All Required WorkBroken PromisesNew BusinessContact Debtors By Phone And MailVerify And Update Account InformationSolicit Payment In FullSet up & Maintain Payment PlansSkip Trace

CCS ResourcesPrivate Collection AgenciesVSG Virtuoso Sourcing GroupEOS/CCA Collecto IncACSI Automated Collection Services IncMSB Municipal Services BureauUCB United Collection Bureau

Private Contract AttorneysMachol & Johannes

CCS OffsetsCollecting Accounts Through Offset Programs

OFFSET ProgramsTAX OFFSET In Partnership With Dept. of RevenueLOTTERY OFFSET In Partnership With Dept. of RevenueGAMING OFFSETIn Partnership With Dept. of RevenueHosted By Statewide Internet Portal AuthorityFEDERAL OFFSET In Partnership With Federal Bureau of Public DebtVENDOR OFFSET In Partnership With State CORE Program

HIGH Recovery RateTotal Offsets Collected For Colorado

$11 MillionTo Date This Year 2015

$55.7 MillionSince Inception

TAX OFFSET Guidelines & NotificationsStatutes 24-30-202.4 and 39-21-108(3)(A)(1)

Notify Debtor Of Intention To OFFSETLetters Go Out To Good Addresses With Valid SSNsFinal Agency Determination/Reduce To JUDGMENTDebtor May Not Dispute Validity Of DebtRequest Hearing NOTIFICATIONHearing Process During Fall Season

57MAIL ReturnsAccounts With Bad Or No Address

SSNs Are Matched With Department of RevenueDebtor Notified By DOR As Tax Returns Are ReceivedRight To Hearing If No Prior NotificationRecent Clean Up of MR Bad Addresses

58HIGH Recovery RateTotal Tax Offset Monies Collected

$8,289,912 So Far This Year $43,705,863Since Inception in 1985

TAX Offset Injured SpouseJoint Returns & Innocent Injured SpouseIf Debt is Not Jointly Owned, The Innocent Injured Spouse May Request A Refund Of Their Portion Of The Taxes

Innocent Injured Spouse Form IIS Form is submitted by Spouse To DOR Up To 3 Years After Interception of Taxes

DOR Recalculates Tax Refund Based On Contribution of Each And Reclaims Funds Back From CCS And Sends To Injured Spouse CCS in turn Reclaims from Client

Federal Offset No time limit for filing IIS form60LOTTERY Offset WinningsEasy Come Easy GoAmazingly Lucky Winnings Intercepted From Colorado Lottery

Threshold for Interception Same As For IRS And DOR$1,200.00 (Debtor Must Owe Minimum $300)Behind Child Support And Judicial Restitution$159,519 Last Year$247,684 Since Inception

61GAMING Offset WinningsEasy Come Easy GoAmazingly Lucky Gaming Winnings Intercepted From Casinos And Racetracks

Threshold For Interception Same As For IRS And DOR$600.00 (No Minimum)

Behind Child Support And Judicial Restitution

$45 Charge to Consumer ($20 SIPA + $25 Casino)

$642,359 Last Year$1,303,564 Since Inception

62VENDOR OFFSET COREEasy Come Easy GoState Payments To Vendors Intercepted Through CORE, After Required 30 Day Notification

$73,098 Last Year$1,835,878Since Inception

63FEDERAL Offset Programs3 Different Types of Federal Offset Programs

Federal Tax - IRS And State Tax - DORIRS Intercepts from DORDOR Intercepts from IRS

TOPS Offset Federal Tax RefundIRS In Partnership With Colorado Department Of Labor & Employment, UI Fraud Unreported Earning

Reciprocal Program Federal Offsets For State DebtSimilar To State Vendor Offset ProgramRequires State Legislation Passed Last YearAllow Federal Offset of State Payments - Reciprocal

64RECIPROCAL ProgramSB 13-247 -Passed In 2013

Offset Non-Tax Federal Vendor Payments For DEBTS OWED TO CCS

Offset State Tax Refunds & State Vendor Offset For DEBTS OWED TO FEDERAL GOVERNMENT

Offset State Tax Funds & State Vendor Offset For DEBTS OWED TO PARTICIPATING STATES

Can Offset For Political Subdivisions

65HIGH Recovery RateTotal Federal Offset Collected CDLE UI - Fraud & Unreported Earnings$1,900,089 Last Year$8,592,135 Since Inception 2013

LUNCH

GROUP PHOTO

CCS Legal DeptDawn Zarubnicky Legal Coordinator CCS

Melissa Sergent New Claims Specialist Machol & Johannes

Bruce Mechura Paralegal Machol & Johannes

CCS Contract AttorneysMachol & Johannes CCS Contract Attorneys

Jamie Kaplan Bankruptcy Attorney

Arianne Gronowski Litigation Attorney

LEGAL Dept. Responsibilities Managing the Bankruptcy ProcessProcessing Deceased Debtor Information Preparing for and Attending Tax Offset Hearings Managing Suit Authorizations and Accounts in Litigation

BANKRUPTCY Process OverviewCCS Notified of Bankruptcy filing via Bankruptcy Court, Client or Consumer/Debtor.Accounts are put in Bankruptcy Status and Client is Notified of Bankruptcy Filing. Automatic Stay goes into Effect. All Collection Activity must Cease until Bankruptcy Process is Complete. CCS Notified when Bankruptcy is Discharged: Generally 3-4 Months for a Chapter 7 Bankruptcy.Can be Several Years for a Chapter 13.CCS sends Bankruptcy Discharge Notice to Client. Client will Determine if Debt is Dischargeable or Non-Dischargeable in Bankruptcy. If Discharged, CCS will Cancel the Debt. If not Discharged, CCS will Resume Collection.

DECEASED StatusWhat Is The Process For HandlingAccounts With A Deceased Status?

When A Debtor Dies After The Account Is Assigned To CollectionsUpon Notification of Death we Verify the Information through our Skip Tracing service or by Requesting a Copy of the Death Certificate.Contact Originating Agency and update Account Status to DEC. CCS will keep account through one Tax Season for Tax Offset purposes. Then, CCS will Cancel the Account and the Originating Agency will be Notified.When The Debtor Dies Before The Account Is In Collections If the Debtor has been Deceased Less than One Year, send the Account to CCS and notify our Legal Department (dawn.zarubnicky@state.co.us) that the Debtor is Deceased.We will Update the Status to DEC and keep the Account through one Tax Season for Tax Offset purposes. TAX Offset Hearings A TAX OFFSET HEARING IS NOT TO DISPUTE THE VALIDITY OF THE DEBT BUT TO DETERMINE IF THE TAX INTERCEPT IS PROPER.

Overview Of Hearing Process

RECEIVE Written Hearing Request From DebtorNOTIFY Originating Agency of Hearing DateREQUEST Back-Up Documentation And Signed Notarized AffidavitSCHEDULE Hearing With Office Of Administrative Courts NOTIFY Debtor of Hearing Date.MEET With Debtor Prior To HearingTESTIFY On Behalf Of Originating Agency At The HearingPRESENT All Information To Administrative Law Judge

75TAX Offset Post HearingAdministrative Law JudgeMakes Determination if the Tax Intercept is Valid According to Facts Presented and Notifies CCS of the Outcome via an Initial Decision which is forwarded to our Client and the Debtor.

Initial Decision can be Disputed by Either Party by Submitting Dispute to State Controller within 15 Days.

CCS Submits to Attorney Generals Office for Review.

76TAX Offset Post HearingState Controller

Reviews Case File and Transcript of Hearing and Provides Final Decision. If Final Decision against State, CCS Refunds Tax Offset, Cancels and Returns Account to Originating Agency

***PLEASE NOTE*** This does not mean the Debt should always be Cancelled by the Originating Agency. Often, there is not Sufficient Documentation to Prove the Debtor was Properly Notified of the Debt. The Originating Agency should Properly Notify the Debtor of the Outstanding Debt to give them an Opportunity to Pay the Debt Directly, without any Added Fees.

77TAX Offset GuidanceBack-Up Documentation Sufficient to ProveOwnership of the Debt in Court of LawIf Unavailable or Insufficient the Debt is Considered Invalid and Should be Cancelled, per FDCPA and CFDCPA.

IF Judge Accepts Final Agency Determination

Validity of Debt is not Considered at Hearing. Outcome of Hearing only Affects Tax Offset Monies

78CCS LitigationOverview of Legal Process

Professional Legal ServicesLITIGATION AccountsWhen Do Accounts Go Into Litigation?

Upon Client RequestAccount or Packet Over $500.00Assets VerifiedReview of Legal Tier Bronze, Silver, Gold, PlatinumWithin Statute of Limitations to Obtain Judgment

LITIGATION AccountsWhats In The Legal Packet?

Signed Suit AuthorizationBack-Up Documentation CDLE W-6 Screen Shots Verified AssetsCUBS Information and Notes

SUIT AuthorizationClient Checklist

Verified BalanceSigned Authorization FormAttached Supporting Back-Up Documentation Sufficient to Prove the Debt in a Court of Law Included Policies in Place during Term of Debt (For Higher Education Accounts ex. Copies of Student Handbook)

EXPIRED JudgmentsDo Judgments Have An Expiration Date?

All Judgments Have Date of Expiration pursuant to C.R.S. 13-52-102(2)District Court - 20 Years - $15,000 or more Due on Account pursuant to C.R.Civ.P Rule 54(h) County Court - 6 Years Accounts Under $15,000 pursuant to C.R.Civ.P Rule 354(h)As Judgment nears Expiration Date, Machol & Johannes can revive the Judgment for another term. No limit to how many times a Judgment can be revived so long as consumer can be personally served with renewed Judgment paperwork. All Judgment liens expire 6 (or 20) years after entry of the Judgment unless the Judgment is revived and the revived Judgment is recorded before the Judgment lien expires, pursuant to C.R.S. 13-521-102(1).If Debtor Cannot Be Located Prior To Expiration Date Of Judgment, the Judgment Expires And Debt Is Deemed Satisfied pursuant to C.R.S. 13-52-102(2) CCS Will Notify Client Of Expired Judgment CCS Will Cancel AccountVery few Judgments actually expire

BACKUP DOCUMENTATIONYou be the Judge! In the following scenarios, Is the Backup Documentation Sufficient to Prove the Debt Valid before a Judge in a Court of Law?

The Court Is Now In SessionWhat should be sent?

How Would You Rule?

Will the Judge Rule in Our Favor?Case File 001Client sends five accounts for the same consumer to CCS with a total combined balance of $1098.00. Accounts have been sent to legal to obtain judgment.Backup documentation received on accounts shows consumer was notified of a debt due and owing of $1089.00.

Is the backup documentation valid because:

There is only a $9.00 difference and the back up documentation shows less than is actually due on the account so the judge will rule in favor of a judgment for $1089.00?

OR

Is the backup documentation not valid?86The RulingCase File 001The backup documentation is not valid.

The amount placed and the amount on the backup documentation do not match. The amount was transposed from $1089.00 on the documents to $1098.00 when placed with CCS.

To correct this administrative error:

Either the amount placed with CCS needs to be adjusted to $1089.00.

Or

The backup documentation needs to be adjusted to $1098.00 and sent to the consumer before collection efforts can continue.

87What should be sent?

How Would You Rule?Will the Judge Rule in Our Favor?Case File 002

Client sends account to CCS with an original principal balance of $1481.76.School receives very late federal funding that reduces the balance owed by the student to $681.76.Backup documentation provided is an invoice sent to the student showing $1481.76 due and owing.

Is the backup documentation valid because the student knew of a debt owed and did not pay it?ORIs the backup documentation not valid because the balances dont match on what is currently due and owing?

89The RulingCase File 002The backup documentation is not valid.

The principal balances do not match, and

With regard to crediting of late financial aid, it would be appropriate for schools to send a new bill with the adjusted balance and give the student (30) thirty additional days to pay before referring the account to CCS. Debts are to be referred to CCS within (30) thirty days after the debts have become past due. C.R.C. 24-30-202.4(2).90What should be sent?

How Would You Rule?Will the Judge Rule in Our Favor?Case File 003

Client sends account to CCS with an original principal balance of $1013.01.Backup documentation for account shows a Statement addressed to consumer with a zero balance in the Please Pay This Amount line item.Statement shows zero balance due and owing because amount sent to CCS has been adjusted from the account.

Is the backup documentation valid because the Judge will see the adjustments on the invoice and understand it is still due and owing at CCS and to the client?ORIs the backup documentation not valid because the balances dont match and amount due and owing is now zero?92

ExampleThe RulingCase File 003The backup documentation is not valid.

The Invoice states a zero balance due.

TO CORRECTThe client needs to provide an explanation regarding the adjustments made to their Statement and explain that the balance due of $1,013.01 is due to CCS because the account has been placed with their office for collection.ORRevise their account Statement to reflect a balance due and owing of $1,013.01.

94What should be sent?

How Would You Rule?

Will the Judge Rule in Our Favor?Case File 004

Client sends account to CCS with an original principal balance of $3883.65. CCS has collected $334.56 on the original principal and the current principal balance due is $3549.09.

Backup documentation provided for account is a Computer Screen Shot of an Account Detail showing $3883.65 originally sent to Collections. Current balance due is $3549.09.Is the backup documentation valid because balances match?

Or

Or is the backup documentation not valid?

96

ExampleThe RulingCase File 004Trick Question

The backup documentation is not valid.

The Information contained on the invoice is all correct and accurate, however, there is no information about the originating agency on the invoice. It should have something official on the documentation showing the agency, their logo, etc..

98 Backup Documentation for LegalInvoice/Statement that was sent to consumer

Underlying Agreement, Contract, Order, Promissory Note

Instrument providing the terms of pre/post judgment interest rates that fall outside of the statutory guidelines.

Account Summary/Ledger of balance due and owingExplanation of what the charges are for

Review that the documentation being provided has not been written on or altered once it has been sent/provided to the consumer and that it is on official letterhead or other identification of the agency

99

Denver Regional ConferenceJuly 30, 2015

Machol & Johannes, LLC - 2012J3100 Machol & Johannes, LLC - 2012Principals of M&J, LLC

Nick101M&J has been in business since 9/15/1952Almost 63 yearsCollection law only (no national dialer or agency work)Third generation firm with small family business feel180 employeesLargest debt collection law firm in ColoradoM&J invests heavily in technologyA national leader in post-judgment payer rates and liquidation rates for many clients Machol & Johannes, LLC - 2011Firm History102ComplianceHigh performanceExceptional client serviceIndustry leadershipEthicsGrowthTransparency Machol & Johannes, LLC - 2011Core Values103We are the top performing firm for each of our clients We care about compliance and treat our consumers as we would like to be treatedWe are forward looking and will not accept systematic errors

Machol & Johannes, LLC - 2011Missions104M&J has a dedicated team of account representatives and paralegal staff that handle only government accounts. This team is trained in the specifics of these accounts from placement ; which includes collection, litigation and post-judgment work Machol & Johannes, LLC - 2012Government Team Machol & Johannes, LLC - 2012Litigation Overview 24-30-202. 4. Collection of debts due the state--controller's duties--creation of debt collection fund

Collection Fee Add On Provision

Machol & Johannes, LLC - 2012C.R.S. 24-30-202.48)(a) The department of personnel may add a collection fee to the amount of a debt's principal and accruing interest referred to the state controller pursuant to this section except where other specific statutory authority, requirements under federal programs, or written agreement with the debtor provide otherwise. The department shall determine upon annual review the amount of the collection fee, which shall approximate the reasonable costs incurred by the controller in collecting debts. The collection fee may include a fee to recover the collection costs incurred by either the controller, private counsel, or private collection agencies, but in no case shall the aggregate fee for the controller or private collection agencies exceed twenty-one percent and in no case shall the aggregate fee for private counsel exceed twenty-five percent

Machol & Johannes, LLC - 2012Collection Fee: Contractual (b) The debtor shall be liable for repayment of the total amount of a debt due to the state, including the collection fee plus allowable fees and costs pursuant to paragraph (c) of this subsection (8) and the delinquency charge pursuant to section 24-79.5-102. Any court-ordered award that is insufficient to cover the total amount outstanding shall be applied first to the principal amount owed, then to court costs, then to attorney fees, then to interest, and then to any delinquency charge.

(c) If such a debt due to the state is litigated and the state prevails, in addition to the collection fee, the debtor shall also be liable for the following:

(I) Reasonable attorney fees as may be determined by the court;(II) Court costs as described in section 13-16-122, C.R.S.; and(III) Fees incurred by the state's attorney in processing the litigation and collection of any judgment.

Machol & Johannes, LLC - 2012Collection Fee: Contractual (2) When there is no agreement as to the rate thereof, creditors shall be allowed to receive interest at the rate of eight percent per annum compounded annually for all monies after they become due on any instrument of writing, or money due on mutual settlement of accounts from the date of such settlement and on money due on account from the date when the same became due.

Machol & Johannes, LLC - 2012Statutory Interest C.R.S. 5-12-102The statute of limitations for state agency claims differ based on the underlying contract and/or claim. The statute ranges from one year to six years, and some claims are not subject to the statute of limitations.In order to determine the statute of limitations for specific claims, please contact Dawn immediately to have M&J review the account to ensure timely filing of your claim.

Machol & Johannes, LLC - 2012Statute of LimitationsIn order to prevail in a litigation case, documentation is essentialIf the claim is based on a contract, the underlying contract is necessaryIf the claim is based on an unpaid balance i.e.; bounced check, tuition, student loan, the supporting documentation must be provided to proceed with a lawsuit

Machol & Johannes, LLC - 2012Documentation to support claims in litigationIt has long been the law in Colorado that a party attempting to recover on a claim for breach of contract must prove the following elements: (1) the existence of a contract; (2) performance by the plaintiff or some justification for nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting damages to the plaintiff.

Machol & Johannes, LLC - 2012ELEMENTS TO PROVE AT TRIALAn express contract is one evidenced by the parties written or oral words.

An implied contract is an agreement in which the parties by a course of conduct have shown an intention to be bound by the agreement. Machol & Johannes, LLC - 2012ELEMENTS TO PROVE AT TRIALExistence of ContractProve the consumer entered into an agreement with the State/Agency with a signed contract or using other documentation to prove an implied contract exists, ie: invoices, notices, checks, billing historiesWhat other proof exists that the consumer owes a balance or agreed to pay fees and charges

Machol & Johannes, LLC - 2012ELEMENTS TO PROVE AT TRIALPerformance by plaintiffWhat proof exists that the consumer entered into the contract with the State/Agency What proof exists balance and/or charges are appropriate

Machol & Johannes, LLC - 2012ELEMENTS TO PROVE AT TRIALFailure to perform the contract by the defendantPayment History - No payment received from defendantProve defendant didnt drop classesWhat about late withdrawal?

Machol & Johannes, LLC - 2012ELEMENTS TO PROVE AT TRIALResulting damages to the plaintiffWhat proof does State/Agency have that the damages are appropriate, either by law or by contractWhat proof exists that fees and charges were agreed toPROOF OF PRICE TERM FOR CONTRACT:Quantum Merit (reasonable value)Stated Price

Machol & Johannes, LLC - 2012ELEMENTS TO PROVE AT TRIAL Machol & Johannes, LLC - 2012CEASE COMMUNICATIONNick11915 U.S.C.A. 1692c(c) Ceasing communication

If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except

to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

Machol & Johannes, LLC - 2012CEASE COMMUNICATION REQUESTSNick120Pursuant to the Colorado FDCPA, C.R.S. 12-14-105(e), the Machol & Johannes initial demand letter states that: A consumer has the right to request in writing that a debt collector or collection or collection agency cease further communication with the consumer. A written request to cease communication will not prohibit the debt collector or collection agency from taking action authorized by law to collect the debt. However, the federal and Colorado FDCPA both provide that if a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the cease communication directive applies.

Machol & Johannes, LLC - 2012NOTICE OF RIGHT TO MAKE CEASE COMMUNICATION REQUESTNick121So, if Machol & Johannes receives a written notice to cease communication, or a written notice that the consumer refuses to pay the debt: (1) We should note in Priority Notes that there is a cease communication on the account, and we should not communicate with the consumer, whether or not the written notice requests no communication by mail, or by telephone, or both, until such time as Machol & Johannes receives a clear waiver of the cease communication request.(2) If the cease communication request is made within 30 days after receipt of the initial demand letter and includes a dispute of the debt, we should not communicate with the consumer, except to provide a verification of the debt, until such time as Machol & Johannes receives a clear waiver of the cease communication request.(3) If Machol & Johannes does receive a clear waiver of a cease communication request, the nature of the waiver should be noted in Priority Notes, and we should only communicate with the debtor in compliance with the waiver.

Machol & Johannes, LLC - 2012Machol & Johannes Procedures for Cease Communication Requests and Waivers122 Machol & Johannes, LLC - 2012Post Judgment OverviewNick123High-level approachFind assets and garnishFind assets viaPublic databasesPrivate databasesDebtor examsDetailed approachSee following slide

Machol & Johannes, LLC - 2012Post Judgment ProcessNick124Our success is based on collecting Post Judgment (PJ) accountsPJ accounts are constantly being researched and worked to locate assetsWork efforts include:Reviewing information found by way of research and requesting garnishments and liens where appropriateAttempting to contact the consumer to set up voluntary payments

Machol & Johannes, LLC - 2012Post Judgment CollectionNick125 Machol & Johannes, LLC - 2012M&J Percentage of Monthly Collections

Machol & Johannes, LLC - 2012QUESTIONS

CREDITORS' RIGHTS AND OBLIGATIONS IN BANKRUPTCY CASESState of Colorado Central Collection ServicesDenver Regional ConferenceJuly 30, 2015

Machol & Johannes, LLC - 2012J3128A. Chapter 7 - Liquidation. All non-exempt assets are sold and the proceeds are distributed to creditors. A discharge is usually entered approximately 4 to 6 months after the case is filed.

B. Chapter 11 - Reorganization. Debtor may be an individual, partnership or corporation. Debtor develops plan to repay or otherwise reorganize debts.

C. Chapter 12 - Repayment plan for family farmer with annual income. Similar provisions to Chapter 13.

D. Chapter 13 - Repayment plan for individuals with regular income, unsecured debts of less than $383,175 and secured debt of less than $1,149,525. Section 109(e) and 104. Can include business operations and business debts. A Chapter 13 plan lasts for 3 to 5 years. A discharge is not entered until after the Chapter 13 plan has been completed.

- Cannot include corporations- Note that individuals do not do business as corporations

Machol & Johannes, LLC - 2012TYPES OF BANKRUPTCYA. Effect of Automatic StayThe automatic stay prohibits:1. Enforcement of pre-petition debts and pre-petition judgment liens, including proceedings that could have been commenced before the bankruptcy was filed and proceedings to recover claims that arose before the bankruptcy was filed. Section 362(a)(1), (2), (5) and (6).

2. Enforcement of any debt, whether pre-petition, or post-petition against property of the estate. Section 362 (a)(3)and (4).

3. Property of the bankruptcy estate. Section 541.Chapter 7 - substantially all property of the debtor, as of the date of filing the petition. Does not include earnings from post-petition services of individual debtor. Section 541(a)(6).Chapter 13 - substantially all property of the debtor, including post-petition earnings. Section 1306(a).

Machol & Johannes, LLC - 2012AUTOMATIC STAYEffect of Automatic Stay. It is established that withholding school transcripts for unpaid student loans is an effort to collect the student loans, which is stayed under Section 362 of the Bankruptcy Code. In re Gustafson,111 B.R. 282 (9th Cir.BAP 1990), reversed on other grounds, 934 F.2d. 216.

Machol & Johannes, LLC - 2012EFFECT OF AUTOMATIC STAY AND BANKRUPTCY DISCHARGE ON WITHHOLDING STUDENT TRANSCRIPTSNick131(1) Once a discharge has been entered and the automatic stay under Section 362 has terminated, it has been held that, where the debtors student loans are nondischargeable, withholding the students transcript is not a violation of the post-discharge governmental anti-discrimination provisions of Section 525 of the Bankruptcy Code, and the college would not be required to turn over the debtors transcripts where the debtor had failed to pay his nondischargeable student loans. Johnson v. Edinboro State College, 728 F.2d 163 (3rd Cir. 1984).

(2) In re Hernandez, 2005 WL 1000059 (Bankr.S.D.Tex. 2005)

- Notes that the vast majority of cases find that withholding a transcript is a violation of the automatic stay - So, the rule remains that schools cannot withhold transcripts for failure to pay a student loan without seeking relief from the automatic stay. Machol & Johannes, LLC - 2012EFFECT OF AUTOMATIC STAY AND BANKRUPTCY DISCHARGE ON WITHHOLDING STUDENT TRANSCRIPTS (contd)132Pursuant to Section 362 (c), automatic stay ends:1. As to property, when property is no longer property of estate; or2. When bankruptcy case is closed, dismissed or discharge is entered.Note that when a bankruptcy case is dismissed, there is no discharge entered.

Effect of Bankruptcy Stay on Co-Debtors:1. No co-debtor stay in Chapter 7 or 11, regardless of whether co-debtors are spouses or individual guarantors of corporate or LLC debts.2. Co-debtor stay only exists in Chapter 13 for consumer debts.(a) Pursuant to 11 U.S.C. 1301(a), a Chapter 13 filing by one debtor creates an automatic stay of enforcement against any co-debtor on a consumer debt.- pursuant to Section 1301(a)(1), co-debtor stay does not apply to business debt Machol & Johannes, LLC - 2012AUTOMATIC STAYA. If an overpayment is with CCS, and the overpayment has not been referred to Machol & Johannes, CCS is responsible for filing a proof of claim, if the debt and the bankruptcy fit the CCS criteria for filing a proof of claim.

B. If an overpayment account is referred by CCS to Machol & Johannes, M& J is responsible for filing a proof of claim, if the debt and the bankruptcy fit the M&J criteria for filing a proof of claim. M&J criteria for filing proofs of claim:1.Proof of claim will be filed in all Chapter 13 cases.2.Proof of claim will only be filed in Chapter 7 cases in which there are assets sufficient to produce a dividend for creditors

Machol & Johannes, LLC - 2012PROOFS OF CLAIMA. The automatic stay will apply in both Chapter 7 and Chapter 13 cases, even if the creditor is not listed in the bankruptcy. As soon as the creditor learns of the bankruptcy, the creditor must cease collection activity until the case is over.B. No discharge for debts omitted in a Chapter 7 or a Chapter 13 case from schedules where omission impairs the creditor's right to file a proof of claim or to request a determination of nondischargeability. Section 523(a)(3).C. If a complaint to determine dischargeability is an issue, and the creditor was omitted from the schedules, a creditor may pursue a determination of non-dischargeability after the 60 day deadline in Bankruptcy Rule 4007(c). Section 523(a)(3)(B), 523(c)(1) and Bankruptcy Rule 4007(b). In re Candidos, 327 B.R. 112 (Bankr.E.D.N.Y. 2005).D. In a no asset case where a complaint to determine dischargeability is not an issue, the omitted debt is not excepted from discharge, and the debt is discharged without the need to reopen the case. Section 523(a)(3)(A). In re Padilla, 84 B.R. 194 (Bankr.D.Colo. 1987).E. Pre-petition debts that are not listed in a Chapter 13, and which are not provided for by a Chapter 13 plan, will not be discharged. Section 1328(a)(2) and (c)(2). Machol & Johannes, LLC - 2012EFFECT OF BANKRUPTCY ON DEBTS OMITTED FROM BANKRUPTCYA. Government fines and penalties - Section 523(a)(7)1. Nondischargeable if payable to a governmental unit and is not compensation for actual pecuniary loss. Nondischargeable without the need for filing a complaint to determine dischargeability, pursuant to Section 523(c)(1).

B. Nondischargeable debts in Chapter 13. 1. The list of debts excepted from a Chapter 13 discharge under the previous Section 1328(a) has been expanded to include debts defined by 523(a)(1)(B) and (C), (a)(2) and (a)(3), unfiled, late-filed, and fraudulent tax returns, fraud, failure to notify creditors of the bankruptcy in time to allow filing a proof of claim or to file a complaint to determine dischargeability of debt, but government fines and penalties under 523(a)(7) are dischargeable in Chapter 13.

Machol & Johannes, LLC - 2012ADDITIONAL NONDISCHARGEABILITY ISSUESFraudulent unemployment overpayments.1. The 65% penalty under C.R.S. 8-81-101(4)(a)(II) is nondischargeable under 11 U.S.C. 523(a)(7), as a penalty payable to and for the benefit of a governmental unit that is not compensation for actual pecuniary loss. The 65% penalty for unemployment fraud is also nondischargeable as ancillary to the fraud. So, the penalty is also nondischargeable in Chapter 13 under Section 523(a)(2). Machol & Johannes, LLC - 2012ADDITIONAL NONDISCHARGEABILITY ISSUES (contd)Liens of secured debts, including judgment liens, if not avoided in the bankruptcy case, generally survive bankruptcy. Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992).

2. Under Section 524, a bankruptcy discharge constitutes a permanent injunction against enforcement of a discharged debt as the personal liability of the debtor, but a discharge does not prohibit in rem enforcement of a lien against the property which secures a secured debt. In re Wrenn, 40 F.3d 1162 (11th Cir. 1994). Machol & Johannes, LLC - 2012POST-DISCHARGE ENFORCEMENT OF NON-AVOIDED LIENSAlthough there is no case on point, it appears that such post-discharge lien enforcement could include revival of a judgment for the limited purpose of extending the six-year duration of a judgment lien in Colorado.

3. There does not appear to be a time limit for avoiding liens, as liens may be avoided after the bankruptcy case is closed, if the lien impairs an exemption, based on the value of the property when the case was filed. Machol & Johannes, LLC - 2012POST-DISCHARGE ENFORCEMENT OF NON-AVOIDED LIENS (condt)1. No co-debtor stay in Chapter 7 or 11, regardless of whether co-debtors are spouses or individual guarantors of corporate or LLC debts.

2. Co-debtor stay only exists in Chapter 13 for consumer debts.a. Pursuant to 11 U.S.C. 1301(a), a Chapter 13 filing by one debtor creates an automatic stay of enforcement against any co-debtor on a consumer debt. Machol & Johannes, LLC - 2012EFFECT OF BANKRUPTCY ON CO-DEBTORSNo co-debtor stay except in Chapter 13.No co-debtor stay in Chapter 7 or 11, even on consumer debts.No co-debtor discharge for LLC or corporation when officer, director or shareholder files bankruptcy.No co-debtor discharge for corporation when individual files as o/d/s (officer, director or shareholder)-o/d/s designation makes no difference. The corporation is unaffected by the individuals bankruptcy filing.No co-debtor discharge for officer, director or shareholder when corporation or LLC files bankruptcy Machol & Johannes, LLC - 2012EFFECT OF BANKRUPTCY ON CO-DEBTORS (contd)Definition of a student loan.Bankruptcy Code Section 523(a)(8), an educational loan is nondischargeable if it is:

(A)(i) a debt for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or(ii) for an obligation to repay funds received as an educational benefit, scholarship or stipend; or(B) any other educational loan that is qualified education loan, as defined in Section 221(d)(1) of the Internal Revenue Code of 1986.unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtors dependents.

11 U.S.C. 523(a)(8). Machol & Johannes, LLC - 2012NONDISCHARGEABILITY OF STUDENT LOAN DEBTS SECTION 523(a)(8)1.There is no longer any limit on dischargeability of student loans with respect to the age of the loan. The time limit provision in Section 523(a)(8) of the Bankruptcy Code was removed in 1999.

2.Student loan debts are not dischargeable in Chapter 7 or Chapter 13, unless there is a finding of undue hardship. Section 1328(a)(2).

3.Educational loans are presumed to be nondischargeable.- No requirement for creditor to file a complaint to determine dischargeability. In re Gustafson, 111 B.R. 282 (9th Cir.BAP 1990).

4.A debtor may file a complaint to determine dischargeability of a student loan, based on hardship to the debtor and dependents under Section 523(a)(8). Educational Management Corporation v. Polleys, 356 F.3d 1302 (10th Cir. 2004) and In re Woodcock, 149 B.R. 957 (Bankr.D.Colo. 1993). Machol & Johannes, LLC - 2012NONDISCHARGEABILITY OF STUDENT LOAN DEBTS SECTION 523(a)(8) (contd)Nick143... 11 U.S.C. 523(a)(8), which provides that student loan debts guaranteed by governmental units are not included in a general discharge order unless excepting the debt from the order would impose an undue hardship on the debtor. See also 727(b) (providing that a discharge under 727(a) discharges the debtor from all prepetition debts except as listed in 523(a)).

[5] Section 523(a)(8) is self-executing. [citations omitted] . Unless the debtor affirmatively secures a hardship determination, the discharge order will not include a student loan debt.

Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 450, 124 S. Ct. 1905, 158 L. Ed. 2d 764 (2004). Machol & Johannes, LLC - 2012STUDENT LOANS AS PRESUMPTIVELY NONDISCHARGEABLE IN BANKRUPTCYNick144Use of Chapter 13 Plan to pay student loan debts.

1. A Chapter 13 Plan which provides that the unpaid portion of student loan debts will be discharged based on undue hardship will effect a discharge of the student loan debts, if the Plan is confirmed and the student loan creditor fails to object to confirmation. In re Anderson, 215 B.R. 792 (10th Cir. BAP 1998).

But the Chapter 13 Plan must specifically assert undue hardship for the student loan to be discharged. In re Kaufman, 122 Fed.Appx. 815 (6th Cir. 2004)

2. A Chapter 13 Plan may provide for partial payment of student loan debts, but the unpaid portion will not be discharged, unless the debtor obtains a determination of undue hardship under Section 523(a)(8). In re Taylor, 223 B.R. 747 (9th Cir. BAP 1998).

Machol & Johannes, LLC - 2012CHAPTER 13 PLAN TREATMENT OF STUDENT LOAN DEBTS145- Note special nondischargeability exception for Health Education Assistance Loans (HEAL), 42 U.S.C. 292f(g). HEAL loans are presumed nondischargeable, unless the Bankruptcy Court finds that it would be unconscionable not to discharge the loan. A debtor cannot request a discharge of HEAL loan until at least 7 years after the loan first becomes due. In re Zierden-Landmesser, 214 B.R. 300 (Bankr.M.D.Pa. 1997).

See also U.S. Dept. of Health and Human Services v. Smitley, 347 F.3d 109 (4th Cir. 2003) Machol & Johannes, LLC - 2012EXCEPTIONS TO DISCHARGE - 11 U.S.C. 523Nick146The majority of courts have concluded that student loans obtained by a parent for the educational benefit of a child are nondischargeable. Obligation debtor incurred for her children's education was educational loan within meaning of statutory exception to discharge and that exception applies to both debts of student borrowers and to obligations incurred by their non-student co-obligors);....

In re Hamblin, 277 B.R. 676, 679 (Bankr.S.D.Miss. 2002). Machol & Johannes, LLC - 2012STUDENT LOANS AS NONDISCHARGEABLE FOR PARENTS AND STUDENTS IN BANKRUPTCYNick147In In re Parker, the court found that Boston University acted in contempt of the discharge injunction by refusing to allow the debtor to register for classes after the discharge of the debt owed to the university. 334 B.R. at 538. In the recently decided In re Kuehn, the Seventh Circuit likewise found that a private university violated the discharge injunction for its refusal to honor the debtor's state-law right to receive a copy her transcript.

In re Moore, 407 B.R. 855, 859, 861 (Bankr.E.D.Va. 2009).

Machol & Johannes, LLC - 2012EFFECT OF BANKRUPTCY DISCHARGE ON COLLECTION OF STUDENT LOANS AND WITHHOLDING STUDENT TRANSCRIPTS... enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which separated 523(a)(8) into two independent clauses, i.e, (A)(i) and (A)(ii), ... 523(a)(8) now has a test under (A)(i) for an educational benefit ... loan made ... by a governmental unit and (A)(ii) for an obligation to repay funds received as an educational benefit, ....

* * * *

Baiocchi, 389 B.R. at 83132. The Baiocchi court observed that BAPCPA's separation of the phrase obligation to repay funds received as an educational benefit from ... 523(a)(8)(A)(i), must be read as encompassing a broader range of educational benefit obligations. 389 B.R. at 83132.

In re Belforte, 2012 WL 4620987 (Bankr.D.Mass. 2012). Machol & Johannes, LLC - 2012FINANCIAL AID REFUNDS AS NONDISCHARGEABLENick149A. A governmental unit may not deny, revoke or refuse to grant a license or permit to a debtor, deny employment to a debtor, or discriminate with respect such a grant or employment of debtor solely because the debtor has filed bankruptcy, or has not paid a debt that is dischargeable in bankruptcy. Section 525(a).

B.A governmental unit that operates a student loan program, and a person that makes loans under an insured or guaranteed student loan program, may not deny a loan or loan guarantee to a debtor because the debtor has filed bankruptcy or has not paid a debt that is dischargeable in bankruptcy. Section 525(c).

C.If the student loan is discharged, refusing to provide a transcript would be an attempt to collect a discharged debt and would be a violation of the discharge injunction under Section 524(a)(2), and a violation of the anti-governmental discrimination provision under Section 525(a). Machol & Johannes, LLC - 2012GOVERNMENTAL DISCRIMINATION. SECTION 525 Machol & Johannes, LLC - 2012QuestionsNick151ESSENTIAL Management Successful Collections

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