What is involved in filing suit? How much does it cost? How long does it take? Answers to these questions and more.
You have received a string of broken promise and you have decided that now you want to proceed with suit against the debtor. What is involved in filing suit? How much does it cost? How long does it take? Is it worth the effort and expense?
The first decision that will be made, are you using a collection agency? Is there a “bump” or escalator clause that you now have to pay them more money to file suit? You should ask yourself “why is my company paying this collection company for failing?” What is my net IF all the money my company is owed is collected? Its important because that is the “best case scenario”. Understand that collecting 100% may be very difficult. Does your collection rate jump to 40-50% so the collection agency can get “their cut” after not being successful? Don’t waste time sending big cases to a collection agency. Read more here about why.
If you have not been successful in getting your past due account customers to pay after sending a bunch of letters and all of the above mentioned maybe it is time to change your strategy and hire a Springfield Missouri collection attorney on a contingency fee basis. Our fees do not change. It is 25% of what is recovered plus costs and expenses.
The benefit of hiring a Missouri contingency lawyer debt lawyer to a traditional debt collector is that you do not pay a legal fee in advance. We are only paid a fee if successful in collecting money owed to you. If your contracts with the debtor allow, we also pursue attorney’s fees and costs from the debtor. This will either lower or eliminate the fee altogether.
*Please note that a legal fee differs from a legal cost or expense such as a court filing fee that would be due prior to a lawsuit being filed. This varies by the county in which the lawsuit must be brought. Additionally this does not cover the fees and costs associated with the defense of any counterclaim the debtor may bring against your company. These type defenses are handled on an hourly rate basis.
The second decision in consultation with a Springfield Missouri collection attorney, is what type of action will be brought against your customer. The following are the most common causes of action for a typical collection account:
Open Account – an open account is typically an account in which purchases are periodically made, with the intent that purchases will be totaled in a single account. A statement is then periodically furnished to the debtor. An open account tends to be one of the simplest and most cost effective methods of establishing an obligation. Other related forms of action include an action on an account stated which is generally defined as an agreement stated between persons who have had previous transactions, fixing the amount due in respect to the transaction and promising payment. Another form of action is that of goods sold and delivered. In an action to recover on a claim for goods sold and delivered, typically the plaintiff must prove delivery of goods and show either an agreement upon the sale price or that the amount claimed represents a reasonable value of the goods actually delivered.
Breach of contract – In an action for breach of contract, the essential elements include the establishment of the valid and enforceable contract between the parties, a breach of said contract by the defendant, and the resulting damages to the plaintiff. Typically the benefits of bringing an action on a breach of contract, (including a credit application) include the ability to seek recovery of attorney’s fees, interest at a higher rate, as well as other beneficial provisions contained in the contract (i.e., submission to jurisdiction and agreement as to venue).
Bad checks – When a customer provides you with a bad check or NSF check, they also provide you with a very easy and valuable means of establishing your obligation as well as the opportunity to recover significantly more than the amount of the check provided that you follow the requirements of Missouri law. Missouri statute 570.123 provides that treble damages (three times the amount of the check) up to $500 plus attorney fees and costs can be recovered from the maker should the maker or drawer fail to pay the amount owing to the payee within 30 days following a prescribed written demand thereof.
What proof will you need?
Typically your attorney will need the following supporting documentation to analyze your case and determine what would be the most cost effective cause of action to initiate: a credit application, a statement of account reflecting the dates of all charges, an itemization of the charges and the amount due; and any correspondence between the parties which contain any admission of liability by the customer or defendant. Delivery receipts can be introduced at trial to establish delivery of goods as well as any attendant terms and conditions as set forth in the delivery receipts. Any contracts, NSF checks or other documentation executed by the debtor should be provided for evaluation as well.
How Small is Too Small?
Typically suit for an action less than $1,000.00-1,500.00 may not be cost effective, especially if there is no contract or statute to allow for the recovery of attorney’s fees.
How Old is Too Old?
Statistically, the older your claim, the less likely your prospects for recovery. After 90 days of nonpayment you should be calling a collection lawyer in Springfield Missouri You should be aware that Missouri does have a statute of limitations. Typically a civil action or proceeding must be brought within the time set forth in the statute or your claim will be barred forever. If an action is founded on a written instrument, the statute of limitations is typically 10 years, but it could be as little as 5 years. Always check with your attorney regarding the facts in your particular case.
Where is suit filed?
In general, the jurisdiction of a court is its power to hear and decide cases. To be able to hear a case, the court must have jurisdiction of not only the parties in the lawsuit, but also the subject matter of the case. Jurisdiction is typically conferred by the state constitution and state statutes. By having jurisdiction over a case, the court has the authority to render orders and decrees that are legally binding upon the parties.
Besides jurisdiction, a plaintiff must determine in which “venue” the suit should be brought. Venue is the geographical area of responsibility for each court. In Missouri, there is a circuit court and associate circuit court in every county. Typically, venue is deemed to lie in either the county where the defendant resides or the cause of action accrued. On a cause of action on a contract for payment of money, when the contract debtor defaults on payments thereof, the cause of action is deemed to have accrued in the county where payment was to have been made. In such a case, if no place of payment is expressly agreed upon, it will be implied that payment was to be made in the county where the contract creditor resides. Additionally, a cause of action on a contract for payment of money, where the contract debtor has defaulted on payments thereof, accrues in the county where payment was agreed to be made and if no place of payment has been expressly agreed upon, it will be implied that payment was to be made in the county where the contract creditor resides. Notwithstanding statutory venue provisions, parties may provide by agreement where suit may be brought to enforce the agreement.
Costs and Fees
How much will this cost?
Every county sets their own court costs, so what may be a viable case in Springfield Missouri may not be a case you would want to file in Marshfield Missouri or Lebanon Missouri. As a result, the inclusion of a provision in a contract or credit application that provides for the recovery of the attorney’s fees by a prevailing party may determine whether or not a party finds it cost effective to initiate litigation.
Contact us for any questions you have regarding proceeding with suit against a customer for an obligation owed your company.
Give Jason Krebs a call or send us an email to set up an appointment today to meet with a Missouri collection attorney about our legal services including commercial debt collection, property management evictions, medical debt collection, our flat fee demand letter service or schedule your free receivables review in our Springfield, Missouri office near Battlefield and 65 on Ingram Mill, south of Glendale High School.
Missouri Collections Group
2838 S Ingram Mill Rd
Springfield, Missouri 65804
email – contact@MissouriCollectionsGroup.com
Schedule your Free Receivables System Review
We created our 5 Point “Receivables Systems Review” Consultation – it has a real retail value of $2999, but because we want to help as many business owners and accounts managers as we can get the answers they need when debtors are taking advantage of them, we’re making a limited number of these available at absolutely no charge. All you need to do is call our office at (417) 833-8200 reserve your spot.
Here are the different elements of what you’ll experience during this in-depth consultation:
A Real, Live Face-to-Face Meeting. We’ll meet face-to-face to discuss your receivables and collections issues. You won’t be filling out a web-based data entry form, sending an email or sitting on hold waiting for a real human being to answer. You and and our Missouri Collection Attorney will sit down in a room and talk things through. We’ll get to know each other the old-fashioned way – where we can share and learn from each other.
A Comprehensive Situational Assessment. We’ll let you describe your collection process. You talk and we listen.
A Preliminary Receivables Review. We’ll conduct a preliminary review of your accounts receivable and any supporting documentation you have on your receivables. In addition, we’ll review your credit application documents, systems and procedures and explain how they factor into your current and how to avoid potential future problems.
An Honest and Open Q&A Session. We’ll answer any questions that you may have about the collection process and what you can do to improve. We’ll be open, honest, and do everything we can to answer your questions to the best of our ability.
Your Customized “Next Steps to Fairness” Proposal. Finally, after going over your situation, we’ll lay out in clear, easy-to-understand language, what we see as the strengths and weaknesses of your system. In addition, you’ll walk away with specific suggestions on what we see as your best course of action moving forward.
GUARANTEE: While we can’t guarantee ultimate results, we will guarantee that our conversation will provide clear, actionable information that you can use to move forward with confidence knowing you’ve received timely and prudent advice.