Detailed Answer
Under North Dakota law, an affidavit of collection is a sworn statement that sets out your legal right to repossess or foreclose on personal property—often in secured transactions (UCC Article 9), warehouseman’s or liveryman’s liens, or abandoned goods statutes. To ensure the affidavit is valid and certified, follow these steps:
1. Draft the Affidavit
- Identify the parties. Use full legal names and addresses of the affiant (you or your business) and the debtor (the party who holds the property).
- Describe the property. List make, model, serial number, or other unique identifiers.
- State the factual basis. Explain the security agreement, lien, bailment, or grounds for collection (e.g., default under a promissory note).
- Reference relevant law. For secured transactions, cite NDCC 41-09-609 (right to take possession); for lien claims, see NDCC 35-18-10 (warehouseman’s lien).
- Include an oath clause. State that the affiant is over 18, competent, and swears the facts are true under penalty of perjury.
2. Notarize the Affidavit
North Dakota requires affidavits to be notarized. The notary public must:
- Verify the affiant’s identity.
- Administer the oath or affirmation.
- Complete a notarial certificate per NDCC 32-01-06 (oaths and affirmations).
3. File or Record (If Applicable)
Depending on your remedy, you may need to record or file the affidavit:
- UCC Financing Statement: If enforcing a security interest, file a UCC-1 (NDCC 41-09-501) with the Secretary of State (financing statements).
- Liens: For warehouseman’s liens, you may record notice in county records (see NDCC 35-18-10).
- Abandoned Property: Abandoned vehicle affidavits must follow NDCC 39-24.1-16 procedures.
4. Serve or Provide Notice
Most statutes require notice before selling or disposing of property:
- Under UCC 9-613, send an authenticated notice of disposition at least 10 days before sale.
- For liens, serve written demand and notice of sale 10 days before enforcement.
- Use certified mail, return receipt, or statutory service methods (NDCC 28-01-14).
5. Enforce Your Right
If the debtor fails to respond or remedy the default:
- You may repossess the property without breach of the peace (UCC 9-609).
- Dispose of the property by public or private sale, auction, or other commercially reasonable method under UCC 9-610.
- Apply proceeds to your claim, reimburse for costs, and remit any surplus to the debtor.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney before taking legal action.
Helpful Hints
- Always describe the property with specific identifiers to avoid disputes.
- Confirm statutory notice periods—missing deadlines can invalidate your actions.
- Keep copies of all filed and served documents for your records.
- Maintain proof of mailing or service to demonstrate compliance with notice requirements.
- Review NDCC Title 41, Chapter 9, and related chapters for complete statutory guidance.