The party bringing the lawsuit (the creditor) is known as the plaintiff.  The one being sued is known as the defendant.  The process is started by the filing of a complaint and the issuance of a summons by the court.

The debt collectionsummons is a simple form which states that the defendant has been sued by the plaintiff and has the opportunity to appear and file an answer should he wish to file some form of a defense.  If the defendant fails to appear or answer the complaint, it advises the defendant that a default judgment will be rendered against him for the amount stated in the complaint together with costs and interest assessed from the date pleaded. If the defendant is a corporation, service is upon any officer of the corporation.  If an individual, he personally must be served.  However, if personal service cannot be effectuated, “substitute service” may be possible against individuals and corporations.

 

ANSWERS & COUNTERCLAIMS

The defendant can retain an attorney who will file an answer to the complaint in which he states his side of the story.  Usually a “general denial” is filed which merely states that the defendant is denying all, forcing the plaintiff to prove all allegations set forth in the complaint.  Additionally, a defendant can file a cross-complaint or counterclaim.  This is a separate suit that the defendant files against the plaintiff, and it usually asks for affirmative relief alleging that the creditor owes the debtor more money than the debtor owes the creditor.  If this situation arises, the creditor must now file an answer to avoid the debtor/defendant from obtaining a judgment in his favor.  Because of the additional work involved and the additional exposure that counsel must now protect the creditor from, creditors must be prepared to incur additional expenses with a separate fee arrangement.  It is important to note that these situations are rare.  An Answer by the defendant if unresolved may necessitate the need for a witness from the creditor to appear and testify.  But many times, answers are without merit and are usually resolved without the necessity of trial.

The debtor’s attorney can make a demand for a “Bill of Particulars” which must be responded to by the creditor usually within ten (days).  The Bill asks such questions as: What were the arrangements and terms of the sale? Was the agreement in writing or oral? What goods were involved? Was the delivery timely? Were any credits ever extended?  Likewise, the creditor has weapons available to him.  Counsel can file on the creditor’s behalf a document demanding the debtor/defendant to admit or deny facts alleged.  If such facts are admitted, those factual issued are deemed resolved. If enough of the facts are admitted, the creditor/plaintiff may be able to move for a Summary Judgment without the necessity of the case going to trial.  Note, however, that the courts are very reluctant to grant such motions unless it is clear that the debtor/defendant is merely putting forward a sham or attempting to delay the ultimate judgment.  Most courts adhere to the American tradition of “allowing a party to have his day in court.”

 

TRIAL

Note that a vast majority of cases are settled on the courthouse steps on the day of trial.  Those that are not move onto a preliminary hearing in which the Judge may, at his discretion, order mediation or arbitration in an attempt to have the parties resolve their differences and reach a settlement to avoid trial.  However, if such is not the case, the matter is set for trial.  At trial, counsel for the creditor/plaintiff may require the necessity of witnesses being present.  You as the creditor/plaintiff must show: (1) that you received an order, (2) that there was a price for the order stated and agreed upon, (3) that you delivered the order, (4) that you made demand for payment, (5) that you have not been paid.  If the above elements cannot be proved, the debtor/defendant may ask the court to dismiss your case and issue a judgment in his favor.  All throughout the trial process, attempts to settle the case may continue.  If a settlement is agreed to by the parties, the action is finalized and releases the debtor from any more than the agreed upon amount.  If a judgment is rendered, the losing party always has the right to appeal to a higher court.  From a practical standpoint, cases are rarely appealed due to the additional expenses involved.

What is important to remember is that in the majority of commercial collection cases, the debtor/defendant neither obtains an attorney nor files an answer.  In that case, after the expiration of the time allowed for the defendant to file an answer, the attorney requests the court to enter a “Default Judgment” on your behalf.  An additional affidavit usually must be filed with the Court swearing that the among sued for is justly due and owing, substantiated by attached documentation as discussed earlier.

 

JUDGMENT

A judgment is a court decree stating the amount due from the losing party owed to the winning party and becomes part of the permanent court records.  Many times it is advantageous to record the in any county where the defendant may have property.  This is called an Abstract of Judgment and creates a lien on any of the judgment debtor’s property in that county for a specified number of years.

 

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