Step by step debt collection - how to recover your debt?
Many entrepreneurs face the problem of overdue receivables in their careers. There are many reasons for this - ranging from poor management to the general economic condition of the country, which has an impact on the market situation. For the entrepreneur, however, the most important thing is not the cause of the arrears, but when the buyer repays the debt. In a situation where the contractor does not want to agree on payment issues, the company is forced to take more decisive steps, such as debt collection or court proceedings. What does debt collection look like and what are its next stages?
Liability and interest
According to Art. 353 par. 1 of the Civil Code, the obligation consists in the fact that the creditor may demand a benefit from the debtor, and the debtor should fulfill this benefit.
In turn, art. 354 of the Civil Code emphasizes that the debtor should perform the obligation in accordance with its content and in a manner corresponding to its socio-economic goal and the principles of social coexistence, and if there are established customs in this respect - also in a manner consistent with these customs. From the above, it should be concluded that as soon as the debt becomes due, a debt arises which the debtor should pay.
If the debtor fails to pay his obligations, the creditor may use the measures referred to in Art. 481 of the Civil Code They show a way to get compensation for a longer waiting time for payment. The most common tool used in relation to unreliable buyers is interest. Importantly, they are ancillary - they cannot exist separately from the main claim.
Art. 481 of the Civil Code
§ 1 If the debtor is in delay with the payment, the creditor may demand interest for the delay, even if he has not suffered any damage and even if the delay was a consequence of circumstances for which the debtor is not responsible.
§ 2 If the interest rate for the delay was not specified in advance, statutory interest shall be due. However, when the claim bears interest at a rate higher than the statutory rate, the creditor may demand default interest at this higher rate.
§ 3 In the event of the debtor's delay, the creditor may also demand compensation for the damage on general terms.
The creditor has the right (not the obligation!) To charge late payment interest. Specific regulations on interest can be found in the Act on payment deadlines in commercial transactions, in force from April 28, 2013.
Demand for payment
A request for payment is one of the most frequently used pre-trial forms of recovering overdue receivables. Importantly, it should focus on real recovery of funds.
In the content of the summons, the entrepreneur is not obliged to present the entire facts of the case, as this should be well known to the debtor. It will be sufficient to provide the most important data, i.e. the basis for the payment request (e.g. sales invoice number ... of ...) and its value.
If the letter does not produce the desired effect, another letter should be prepared and sent. Then it is extremely important to emphasize that this is the last pre-trial summons. In the absence of further reaction, the creditor will refer the case to court. It is also important to have confirmation of dispatch of individual calls.
Debt collection and other measures to discipline the debtor
The entrepreneur may also apply a number of other pre-trial measures to discipline the debtor. In economic practice, the following are often used, inter alia, letters, SMS, e-mail letters or reminders sent via fax. The taxpayer should stamp them with a preventive seal, which will, in a way, announce the sale of the debt or its entry in the register of debtors.
Another equally good solution is a conversation, which may turn out to be a breakthrough for the case and lead to a settlement or cancellation of the existing legal relationship and the establishment of a new one - by setting new payment deadlines or allowing the possibility of payment in installments, etc.
The least severe solution to the application of pre-trial measures may be depriving the contractor of rebates or exclusion from participation in the loyalty program.
The creditor should duly document the recovery actions taken by him. This evidence will be extremely important when collecting the debt in court.
Court request for payment
If the debtor fails to respond to either of the two requests for payment, the case must be immediately referred to the court. Time is extremely important here, because the claim may expire and become unmatured.
In the case of expired debts, the payment of even PLN 1 by the debtor towards the receivables causes the debt to become due again. Then the creditor can successfully apply for a refund again within the limits of the law.
Bringing a civil action has the advantage that the limitation period is interrupted.
Entrepreneurs often fear court proceedings. This is dictated by the conviction that high costs are incurred, participation in hearings in cities remote from the place of residence or the loss of a contractor.
Entrepreneurs are usually afraid of court proceedings as they deeply believe that their cost is very high. The creditor should not be afraid of this, because the costs of court proceedings are generally borne by the debtor.
Depending on the basis of the claim, the procedure may be:
- admonitory or
- carried out in the ordinary course.
As a rule, matters relating to the demand for payment of debt are considered in the form of an admonition or an order. Then the hearing is held in camera, and the debtor, as a consequence, receives an order for payment.
If the debt value is relatively low, then the simplified procedure may apply.
Sentence - consequences
A judgment on an order for payment issued by a court should result in the creditor requesting an enforcement clause for the judgment or order for payment. If the debtor does not appeal, go to the appropriate court bailiff who will initiate the enforcement proceedings.