Apartment Trends Magazine August 2014 | Page 39

ASK THE LAWYER MARK TSCHETTER | TSCHETTER HAMRICK SULZER Common Questions about Collecting Rental Debt WHAT IS MORE IMPORTANT THE COLLECTION PERCENTAGE, OR THE LIQUIDATION RATE? WHAT IS THE MOST IMPORTANT ISSUE ABOUT A COLLECTION AGREEMENT? The term of the agreement. Everyone in this business knows you’re only as good as last month’s performance. For this reason all vendor contracts can be cancelled, without cause, upon thirty days notice. Most collection agency agreements contain this provision. Yet, many collection agreements contain other provisions, which nullify your right to cancel on thirty days notice. Specifically, collection agency agreements contain buy back or cancellation fee provisions. For example, over the last ten years you have placed $20M in debt with a collection agency. The collection agency is not performing, so you give them thirty days notice of cancellation, and you request return of your debt (the collection files placed). The collection agency then informs you that you must pay them a 10% cancellation fee, or $2,000,000 to get back your own debt. The debt is yours. Never sign a collection agreement that requires you to pay for the return of your property if the agency is not performing. WHAT IS A COLLECTION RATE, OR COLLECTION PERCENTAGE? Almost, without exception, all rental debt is collected on a contingency percentage, also known as a collection rate, or collection percentage. You pay nothing if no money is collected. If an agency is successful in collecting money, the agency’s fee is a percentage of the amount collected. If a collection agency rate is 40% and they collect $100, you get $60 and the agency gets $40. www.aamdhq.org WHAT ARE COMMON COLLECTION AGENCY RATES? Rates vary significantly. Rates range from 20% to 60%. However, collection rates are like anything else in life. You get what you pay for. Most established national agencies have collection rates that are 40 % or higher. If a collection agency has two piles of debt, one that they get paid 20% on, and one where they get paid 40% or 50%, which pile of debt do you think will get the most effort? Low introductory rates often are misleading because you never get the benefit of the low rate. For example, some agencies offer a low rate up front (20% for money collected in the first 30 days) and then go to 40% or higher. Because collection agencies are legally required to give debtors thirty (30) days to dispute a debt, typically not much money is collected in the first month. WHAT DOES LIQUIDATION RATE MEAN? The liquidation rate is a percentage determined by dividing the total amount collected by the total amount placed for collection. If you place $100,000 for collection, and $15,000 is collected, the liquidation rate is 15%. Liquidation rates vary significantly among collection agencies, and are driven by many factors, including resident demographics. Liquidation rates for rental debt of 5% or less are below average, 5% to 10% are average, and 10% to 15% percent are above average. Liquidation rates for rental debt above 20% are outstanding. You’ll never know your true liquidation rate if you’re not getting enough information from your agency to accurately determine liquidation rates, and if you don’t take the time to really drill into and evaluate the information. Most people think that the collection percentage is the most important factor in collections, and believe they have received a great deal when they get a collection agency to agree to 20% or 30%. However, it’s the liquidation rate that is the most significant factor in determining how much money you receive. Assume $100,000 is placed for collection. If your collection rate is 20%, but an agency only collects 5%, then you receive $4000 (80% of $5,000). If your collection rate is 50% (2.5x higher than the 20% rate), but 15% is collected, you receive $7500 (50% of $15,000), or 87.5% more money in your pocket even though the collection rate was 30% higher. DOES CREDIT REPORTING SIGNIFICANTLY INCREASE COLLECTIONS? Credit reporting does benefit collections, but its overall impact is not well documented. Credit reporting’s impact on collections is more anecdotal (somebody wanted to buy a house so we got paid), and probably grossly overestimated. Most collection agencies report to the credit bureaus. If credit reporting magically collected money, collection agencies reporting 100% of the debt referred to them would be liquidating at phenomenal rates. However, ACA International, the leading trade association representing credit and collections professionals, reported in 2008 that just 18% of all money referred to collection agencies is eventually recovered. Based on our experience with clients, collection agencies often liquidate rental debt at substantially lower percentages. Credit reporting is just one tool to collect money; it should be done carefully, and at the right time to avoid significant potential legal liability, and only after other significant efforts to collect have been made. Credit reporting should never be used as a substitute for continuous work effort. Hard and consistent work effort, focused by constant analysis of debt to deploy multiple treatments of debt, including legal treatment, always outperforms frontend credit reporting collection models. Mark Tschetter is a partner of Tschetter Hamrick Sulzer, P.C. who acts as Colorado Council to the NAA. He routinely teaches classes to multifamily housing professionals. His specific area of interest an expertise is Fair Housing Laws and speaks to professional organizations on landlord/tenant and legislative issues. AUGUST 2014 • TRENDS | 37