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Pro Forma Contract for No Collection No Charge Plan:
TERMS and CONDITIONS:
1.
DEFINITION OF TERMS
1.1
For the purpose of this offer / agreement, “amount collected” shall mean
any partial or full payment or collection of a debt or performance of an
obligation made by the debtor/defendant or by a third party in favor of
the debtor made by the Collection Company or directly paid to the Client
after the account(s) was assigned or endorsed to the Collection Company.
It may be in the form of money, Philippine currency or foreign monies
and/or property whether real or personal, intangibles and/or combination
thereof, in payment of the Client’s claim;
1.2
Also, for the purpose of this agreement “collection efforts” shall mean
any and all generally accepted business and legal efforts exerted by the
Collection Company after receipt of account from the Client for
collection such as; credit, property and/or whereabouts checking,
writing collection or demand letter, delivery of communication to and
from the debtor and/or his lawyer; and, the physical efforts of
collection exerted by Collection Company’s employees, agents and
lawyers;
Collection Company, refers to business assistance,
credit corporation (BAGCO CREDIT) including its retained counsel or
agents.
1.3 Our “ NO COLLECTION, NO CHARGE PLAN ”
must not be given a very literal interpretation. It shall be
construed in the context of what is be mutually reasonable and equitable
to the parties hereto. The Collection Company shall be
given every reasonable time, chances and
opportunities to exert collection strategies, tactics and
procedures out of court and/or through the courts to effect positive
partial or full collection without the Client aborting,
frustrating, stopping, withdrawing, canceling and the like, this
agreement; without due process and equitably paying the collection
efforts exerted by the Collection Company on partially or fully
collectible account(s);
2.
RATES OF SERVICE FEES
2.1 Collection Out of Court in Metro Manila and
Central Luzon
For collecting any kind and age of accounts within Metro Manila, Central
Luzon area the service fee for the Collection Company shall be 25%
of the amount collected;
2.2
Collection Out of Court in Other Parts of
Luzon, Visayas and Mindanao
For collecting any kind and age of account in other places outside of
Metro Manila, and Central Luzon area the service fee for the Collection
Company shall be 30% of the amount collected;
2.3
Attorney’s fee agreed to be paid and/or
obtained from the debtor extra-judicially shall inure to the
Collection Company’s retained counsels to be deducted proportionately
from any collection made;
2.4
Service
Fee for Collection through Court Actions
The Collection Company shall charge 35% on any and all amount(s)
collected and/or paid directly to the Client after the endorsement of
the account. The attorney’s fees awarded by the court and collected,
shall inure exclusively to the account of the Collection Company’s
retained counsels; to be paid proportionally from any partial or full
payment or collection made;
2.5
The service fee of the Collection Company to be
paid out of any partial or full collection shall be the balance after
deducting court costs and attorney’s fee;
In the payment of the attorney’s fee, the percentage prayed for in the
complaint or the percentage agreed to be paid by the defendant/debtor in
case of amicable settlement; or the amount adjudged by the court
and actually collected shall be used;
For criminal action filed against client’s debtors such as for; B.P. 22,
estafa and similar criminal cases by the collection company’s retained
counsels which does not result to any collection but to criminal
conviction and prison sentence to the debtor/accused shall nonetheless
render the client to pay attorney’s fee to the counsel of record on the
case equivalent to twenty (20%) on the client’s principal claim,
exclusive of vat; payable upon rendition of the sentence if not appealed
by the debtor/accused; otherwise, upon finality and execution of
the sentence;
2.6 Service Fee for Extrajudicial Foreclosure of
Mortgage or Replevin
For extrajudicial foreclosure of mortgage or replevin, the Collection
Company shall be paid out of the attorney’s fees charged against the
Mortgagor; or, in no case lower than 10% on the bid price
whichever is higher;
If,
the foreclosure proceedings shall take place outside of Metro Manila,
transportation, board and lodging and necessary expenses for the officer
and/or representative who will conduct the auction sale shall be for the
account of the Client. When a foreclosure become or turn into a
judicial foreclosure, it is deemed a collection through court & the
service fee rate provided in paragraph 2.4 applies;
2.7
The rate of fees enumerated in paragraphs
2.1 to 2.6 excludes the cost of suit,
summons fees, preliminary attachment bond premium when it is applied
for, sheriff’s, guard’s fees or expenses for transcript of
stenographic notes, commissioner’s fee; and, government taxes such
as: VAT and the like , are for the account of the Client;
2.8
In
cases where the Collection Company and/or its retained
counsel are to exert collection efforts judicially or extrajudicially
outside of Metro Manila; board, lodging, transportation expenses and
necessary miscellaneous expenses shall be for the account of the
Client;
2.9
A case or account is deemed a
collection through the court by the filing of a court case
against the debtor and/or the filing by the debtor and / or by a third
party of a court action against the Client and/or the Collection
Company; either to question, dismiss, seek redress,
injunction, interpleader, declaratory relief, judicial foreclosure and
the like;
3.
AREA OF OPERATION
The Collection Company shall operate and exert collection efforts
against any account endorsed for collection within the principal towns,
provinces and cities of the Philippines. However, it reserves the
right to determine whether or not to accept an account for collection
taking into consideration the peace and order situation, economics and
feasibility of collection.
4. EQUITABLE
SERVICE FEE FOR COLLECTIBLE WITHDRAWN ACCOUNT
The Client has the right to supervise, direct the collection efforts of
the Collection Company out of the court or the through the court. In
this regard, it may delay, suspend or withdraw any account it had
endorsed for collection within a period not more than thirty (30) days
from endorsement; and, must equitably compensate the collection efforts
of the Collection Company on the account; provided; that, in all cases
the Collection Company can prove the partial or fully collectibility of
the account under the following instances.
4.1
Account which is not yet pursued in court, not collateralized but
partially or fully collectible but is withdrawn from
collection within 10 days from endorsement; or, the collection efforts
suggested thereon is suspended or delayed by more than (30) days; or
finally withdrawn for collection will render the Client to pay an
equitable fee of P2000.00.
4.1-1
If the account is not yet pursued in court and is secured or
collateralized; the equitable fee for the collection company is ---
15% of the principal claim;
4.2
If the
case withdrawn is already filed in court, and withdrawal is made before
the pre-trial conference, the equitable fee for the collection company
is --- 20% of the principal amount; and the reduced
attorney’s fee agreed to be paid by the
defendant;
4.2-1
If the withdrawal of the case is made within the
period after the pre-trial to the presentation of evidence; the
equitable fee for he Collection Company is ---20% of the total
amount due; which is composed of principal interest and charges.
4.2-2
If the withdrawal of the case in court is within the period from the
resting of the case to submission for decision; the equitable fee for
the Collection Company is --- 25% of the total amount due;
composed of the principal, interest and charges and any
attorney’s fee agreed to be paid the defendant.
4.2-3
If the withdrawal of the case is made within the period from the
rendition of judgment to the securing of the writ of execution; The
equitable fee for the Collection Company is --- 30%
of the total amount due which is composed of the
principal, interest charges and attorney’s fee awarded;
4.3.
If the
case to be withdrawn by the client is covered by a compromise agreement
and the joint and several undertaking of the defendant and his
co-obligor/defendant; the equitable fee of the collection
company is 30% of the total amount due which is composed of the
principal, interest, charges and attorney’s fee awarded;
4.3-1
If the case to be withdrawn by the Client is covered by a compromise
agreement, secured by a collateral and/or has joint and several
obligors/ defendants; the Collection Company’s equitable fee is the rate
provided in paragraph 2.4 of this agreement;
4.4
The Client shall not, without due and proper consultation and agreement
in writing of the counsel of record on the case, reduced, alter or
suspend the payment of the attorney’s fee awarded by the court;
The payment of the equitable fee(s) due to the Collection Company or
attorney’s fee, shall be made within ten (10) days from
presentation of the invoice or bill therefor;
5.
REMITTANCE OF COLLECTION & PAYMENT OF SERVICE FEES
5.1
All collection of cash or checks payable to the order of the Client
shall be remitted the next business day. If the collection is in
check, payable to the order Collection Company’s, the same shall
be remitted upon its clearance with the drawee bank;
5.2
Any and all fees due the Collection
Company and/or its counsels shall be paid not later
than five (5) days from presentation of the bills therefor;
5.3
Delayed payment of fees due the Collection Company or its retained
counsels shall be charged interest at 18% per annum;
5.4
Only cash, Philippine legal tender is acceptable
payment of the Collection Company’s service fee, reimbursable
expenses and the like; even if the “amount collected” was not in money;
unless payment in kind is acceptable as payment of the Collection
Company’s fees.
6.
COMPUTATION OF THE
COLLECTION FEE FOR COURT COLLECTION EFFORTS
6.1
The computation of the service fee due the Collection Company on
the amount collected or won by the Client in an auction sale or
dacion en pago or other from of payment arrangement shall be the bid
price or the agreed valuation of the property;
6.2
The service fee of the Collection Company shall not be computed on an
amount over and above the actual nor below the Client’s claim. In case
of disagreement, the property paid shall be appraised by a mutually
selected, acceptable appraiser; whose valuation shall be deemed
conclusive and final between the parties hereto. The fee for the
appraiser shall equally be divided between the parties hereto.
7.
PROGRESS REPORT
The Collection Company shall render regular monthly report,
without prejudice for the Client to inquire within the interim on the
status or progress on any account endorsed to the Collection
Company’s for its comment and recommendation;
8.
VALIDITY & EFFECTIVITY OF
CLIENT’S ACCOUNT(S)
The Client expressly warrant that, the account it endorsed
for collection to the Collection Company against its debtor are;
legitimate, valid and existing claim. Any claim for damage, loss
and the like; by virtue of any reason or similar therewith, shall be for
the exclusive account of the Client; provided, that, the Collection
Company was not negligent in the exercise of its collection efforts;
The Client agrees nonetheless to reasonably compensate, the Collection
Company for its exerted collection efforts on the subject account, in
the amount not less than 15% of the principal amount being collected;
9.
ACT, OMISSION, NEGLIGENCE, LOSSES
& DAMAGES
9.1
The Collection Company shall be held responsible for the act, omission,
negligence of its employees or agents;
9.2
This agreement does not prohibit the Collection Company to solicit
similar business from competitors of the Client and other entities. The
Collection Company warrants that it shall work on the Client’s on
endorsed accounts first come, first serve basis; and, that it
covenant to deal with any and all of its clients on the highest and
generally accepted norms of business and professional ethics;
9.3
Nothing in this agreement shall be constructed to make the Collection
Company and/or its officer, employees or agent as employees of the
Client.
10.
DELIVERY OF AMOUNT COLLECTED IN
THE FORM OF REAL
AND/OR PERSONAL PROPERTY
10.1
The Collection Company is deemed to have
delivered the property the Client won in an auction sale as
the highest, winning bidder by the physical delivery of the
property to the Client; if, it is movable or personal property.
That, it is not prevented from delivering by reason of an unpaid
lien or encumbrance by a third party who filed a lien thereon; and,
which fact or lien was made known to the Client before the auction sale.
The title over the property shall be registered in Client’s name if
required by law, with the proper government office(s);
10.2
If the amount collected is a real property,
physical delivery of the same is waived; and in lieu
thereof, delivery is deemed complied with by the Collection Company by
the submission to the Client of the certificate of sale in its favor,
duly annotated with the proper government office(s);
10.3
After the redemption period, the Collection Company shall secure a
new title and possession over the property for the Client; including
ejectment of any occupant(s) thereon; who have occupied the
property prior to the auction sale of the property without
further service fee to pay; except the expenses necessary to effect this
provision against the occupant. This obligation shall not be a
condition precedent however to the payment in full of what is due
the Collection Company and/or its attorney;
10.4
It is expressly agreed that the expiration
of any “redemption period” or extension thereof and/or conversion of the
amount collected in property or sale thereof, shall not be a
condition to the payment in full within 5 days from presentation
of the bills of the Collection Company’s service fee and/or
reimbursement of its expenses, including its retained counsel’s
attorney’s fees;
10.5
The failure of the Client
to pay any prior or superior
lien or encumbrance by a third party on an auctioned property; which
fact, was duly brought to the attention of the Client prior to the
auction sale of the same; and, duly instructed to bidded upon
by the Client in its favor; and, which resulted to less or no
benefit to itself, shall in no way be a reason and/or be a bar to the
collection and/or payment of the fees and/or reimbursement of expenses
due the Collection Company;
The payment of such lien or encumbrance shall not be deducted from the
amount upon which the fees of the Collection Company shall be computed;
10.6
When the amount collected is a real property which was
acquired by the Client under an execution sale pending appeal, the
Collection Company after compliance with the provisions of
paragraphs 10, 10.1, 10.2, 10.3, hereof as the case may be, shall
be fully reimbursed its reimbursable expenses, be paid in full its
service fee as well as the attorney’s fees due to its counsels, if there
be any, within five (5) days from presentation of the bill therefor;
10.7
When the Client on its own discretion
allow, extend, postpones, accommodate and the like; the
debtor and/or its assignee/representative to delay payment, vacate any
property acquired by it from an auction sale, the Collection
Company is unconditionally deemed to have fully, completely performed
and rendered its obligation under this agreement, for which reason, it
shall forthwith be paid all its claims for fees, expenses and counsel’s
attorney’s fees;
11.
ENGAGEMENT OF ATTORNEY’S SERVICES
TO PROSECUTE
A
CLIENT’S MONEY CLAIM THROUGH COURT
The prosecution of the Client’s accounts in court shall be handled by
the Collection Company’s recommended retained counsel(s). The attorney
selected by the client shall be its counsel of record on the particular
case(s); and, whose professional conduct action strategy and tactics on
the case shall be his own. The counsel of record selected handles the
case for the Client, with no initial fee such as; retainer, acceptance
or appearance fee for case(s) filed within any of the courts in Metro
Manila. For cases filed outside of Metro Manila area, the
transportation, board and lodging and necessary miscellaneous supported
expenses are to be paid by the client;
In no case is the counsel of record on a case be deemed the retained
attorney for the Client; other than for the case assigned to him to
prosecute in court;
11.1
It shall not be the obligation of the Collection
Company’s attorney to prosecute a case on an account such
as; the clearing of cloud from any auctioned or dacioned property; or,
titling, striking out of inferior or subsequent lien on real property;
or, ejectment of any party after the auctioned/delivery thereof and the
like; unless the Client agrees to pay a separate and reasonable fee
therefor to the attorney selected/engaged by the Collection
Company for the purpose;
11.2
This agreement does not include the prosecution of criminal or a
civil action other than a sum of money case against the debtor/third
party; unless the Collection Company deems it necessary to
undertake as a tactical collection effort;
If
the Client insist that a criminal or a civil action
other than a sum of money case be taken against the debtor or a
third party, the Client must pay the attorney’s appearance fee to wit:
P1,000.00 appearance fee in Manila; P2,500.00 appearance fee in
Luzon, Visayas and Mindanao; and, in all cases outside of Metro
Manila, the transportation, board, lodging, and necessary; needed
expenses in connection with case shall be for the account of the Client;
The Client in addition, must pay upon obtaining a favorable decision in
favor of the Client, a service fee equivalent to the fees provided under
paragraph 2.4, exclusive or any attorney’s fee.
12.
PRIOR PAYMENT OF ACCOUNT BEFORE
ENDORSEMENT
Payment, either in money and/or in kind/service made by
the debtor or a third party for the account of the debtor, prior to its
endorsement or discovery of the fact that the claim is not an account or
obligation of the debtor; which fact was brought to the attention
of the Client, but did not rectify its errors within thirty days (30)
days; shall be deemed an equitable collection made by the Collection
Company; in which case, it shall be paid 15% of the payment made
prior to the endorsement of the account to the Collection Company;
13.
TERM OF THIS AGREEMENT
13.1
This agreement shall be for one (1) year from date
hereof; after which; both parties may or may not enter into a
renewed agreement. In the absence of a new renewed
agreement and, after 15 days from its expiration this contract is deemed
renewed for the remaining account(s) pending with the Collection
Company;
13.2
This agreement and all rights and obligations derived
hereunder by the Collection Company shall be deemed one of those rights
and obligations the Client shall require its successors in
interest/buyer and the like, in case of a sale, take over, merger, etc.,
to acknowledge, abide by and perform; otherwise, the party signing
hereon is unconditionally deemed jointly and severally liable for any
unpaid claims of the Collection Company;
13.3
This agreement maybe terminated after a
thirty (30) day prior, written notice by
either party to the other for any reason; provided; that it is without
prejudice to the right of any party hereto to claim for damage
and/payment of earned, expected service/attorney’s fees due to any party
hereto.
14.
VENUE OF COURT ACTION, INTEREST,
ATTORNEY’S FEES AND PENALTIES
14.1
Venue of court action between the parties hereto, shall be
brought in the proper court of Makati City;
14.2
Attorney’s fees shall be paid by the losing party in an amount not less
than P20,000.00 or 20% of the total amount due whichever is
higher; plus costs and expenses of litigation;
14.3
Any and all amount overdue to either party shall earn
interest at the rate of 18% per annum from date of invoice and/or
supporting documents.
15.
CREDIT EDUCATION & DISCIPLINE
The
Client agrees to the Collection Company’s listing of its endorsed bad
debt accounts form its clients which are not collected with the negative
list –
Infonet of C.I.B.I. Information, Inc. to educate, deter and
discipline bad debtors.
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