Entrepreneur in court - how to write a lawsuit?
Entrepreneurs making commercial transactions with their counterparties must always take into account some risk. At a time when instant cash payments are increasingly giving way to settlements by bank transfer with an extended payment term, an unreliable or insolvent contractor may occur more often. How to recover overdue debts in such a situation, how to write a statement of claim? Let's check it out!
First - amicably
Every entrepreneur would like to settle accounts with an unreliable contractor as soon as possible. However, it is worth postponing the lawsuit and starting (and possibly ending) the battle for recovery with a request for payment.
Such a request is to inform the debtor and remind him of the overdue payment - therefore, it should precisely indicate the amount, the document from which it arises and the exceeded payment date. In addition, the entrepreneur should here set a new date by which the arrears are to be settled.
The request for payment should be sent to the contractor by registered mail and the confirmation of its posting should be kept. In a situation where, despite sending this document, the debtor still does not pay the amount due, such confirmation will have to be attached to the claim submitted to the court.
Formalities before writing the statement of claim
If an attempt to amicably recover the debt did not bring the expected effect, the entrepreneur may take further steps, this time in court. First of all, it is necessary to determine to which court the claim should be submitted.
In most cases of entrepreneurs, the competent court will be the district court - this is due to the fact that the amounts of receivables for which the case is pending usually does not exceed PLN 100,000. If this amount is exceeded, however, the regional court would be competent. In addition, the court competent to hear such a case will be the one located in the district in which the debtor resides (if he is a natural person) or has its seat there (in the case of legal persons or organizational units).
An alternative here is also the court having jurisdiction over the place of operation of the plant or its branch - such a solution is used when the claim is related to a specific entity. It also happens that the lawsuit is referred to the court having jurisdiction over the place of performance of the contract. It is worth remembering that in such a case, the document should include the justification of the procedure other than the basic one. Otherwise, the case will be referred back to the court with jurisdiction - both as regards jurisdiction with regard to the amount of the claim and place of jurisdiction.
In addition to choosing the appropriate court, an entrepreneur, wishing to assert his rights, must also choose the appropriate procedure. In this case, it all depends on the documentation you have.
The simplest, cheapest and fastest solution is the prescriptive procedure. In this case, the basic evidence is the document which shows the outstanding amount - an invoice or a bill. Importantly, it must be accepted by the recipient, so for the writ of payment it is really important whether the invoice has been signed. If so, the case will most likely be dealt with in the writ of payment proceedings, without the need to conduct the trial and summon the parties. Therefore, this type of procedure is much cheaper and faster.
If the entrepreneur does not have a document signed by the other party, the procedure will be carried out in the ordinary manner.
However, it may also happen that the court decides on the simplified procedure. The claimant has no influence on this - according to the regulations, the simplified procedure may be used in situations where the value of the claim results from a contract not exceeding PLN 10,000, and also when the dispute concerns the rent of residential premises and fees charged to the tenant.
How to write a lawsuit to the court?
The lawsuit should begin with the indication of the parties to the proceedings - the claimant and the defendant. All names should always be entered completely - abbreviations will not be correct here, even when it comes to the popular "sp. z o.o. ". Additionally, in addition to the names of the parties, the addresses of residence or registered offices should be indicated (depending on whether they are natural or legal persons).
However, it is not always obligatory to provide the address of the court to which the letter is addressed. If the statement of claim is made in person, it is sufficient to include the name of the unit itself in the statement of claim. However, if it is sent by post, it will no longer be necessary to take into account the address of the court.
Interestingly, there is no obligation to include the date of its preparation in the lawsuit. This is due to the fact that in practice it is not the creation date that is important, but the date of receipt of the document or posting it at the post office.
It is also worth remembering that what is most important in the formulated lawsuit are the conclusions. It is up to them whether the court proceedings will go exactly as intended by the claimant entrepreneur. Therefore, in addition to the obvious conclusion that the claim is due from the defendant, it is also worth taking into account other aspects. Therefore, you can also apply for reimbursement of the costs of court proceedings, making the judgment immediately enforceable, or conducting the case under the aforementioned injunction procedure.
The statement of claim should end with a justification. At this point, the entrepreneur indicates why he decided to take legal action (the aforementioned confirmation of sending the payment order, which should also be included in the list of attachments, is useful here). However, what is very important, the claimant does not have to include a legal basis in the applications - the court is a specialist in this matter. It is assumed that this unit will correctly assign the relevant provisions to a specific case.
The general rule is that a court fee of 5% must be paid on the claimed claim. However, it is worth mentioning here the order for payment procedure - in its case, the value of the payment amounts to only 1/4 of the basic court fee.
If, on the other hand, it happens that the court decides on the simplified procedure, the taxpayer will be required to pay a fixed fee - depending on the amount of the claim, it is:
- PLN 30 for claims up to PLN 2,000,
- PLN 100 for claims in the amount of PLN 2,000-5,000,
- PLN 250 for claims in the amount of PLN 5,000-7,500,
- PLN 300 for claims over PLN 7,500.
Similarly, if the simplified procedure is conducted under the simplified procedure, the fee will be only 1/4 of the indicated amounts.
As you can see, efforts to recover debts through the courts do not require the entrepreneur to use a lawyer. It is enough to know the basic rules. It is worth remembering that in the event of minor shortcomings, the court will not refer you to the statement of claim, but will call the entrepreneur to correct the errors in it.