Whether you are a business that regularly has customers or clients in collections or you are an individual that is owed money by another person you should seek an attorney that specializes in the field of collections. Too many times people will go either to a collection agency or an attorney they have worked with in the past or have been referred to even though they have no or little collection experience. Usually, these experiences end either ineffectively, costly, or both. This first article will talk about the potential pitfalls of going to a collection agency versus seeking out an attorney that specializes in collections.
Let’s talk about effectiveness. You tell me what is more effective, a letter from a law office or from a collection agency? How about a call from an attorney or a collector? A collector has hundreds if not thousands of accounts on his call list. He treats them all the same because to him they are. He calls, he blows out the person on the other end, and moves on. A collection attorney will take the time to know your file because he is the one that may one day have to appear in court on it. Collection attorneys are also skilled negotiators who will listen when it is time to listen and press when it is time to press. They can, and often do, incorporate many styles of negotiating into a single claim depending upon the situation. Often times they will get a deal on the table when a collector will not.
What about cost? Collection agencies work on volume. Therefore, if you are not providing them with a large number of accounts then you will probably be charged a fairly high contingency rate. Furthermore, they need to incorporate an attorney’s rate into their rate in case they cannot collect and the claim needs to go into litigation. For example, if they charge you 33%, they will pay the attorney 25% out of that rate if it goes to litigation. If you go directly to an attorney you may be able to negotiate the same or lesser rate and skip the “middle man”, so to speak.
What else does cutting out the “middle man” mean? It means you do not have to assign your claim as is so often required by collection agencies. This means that instead of the legal right to collect the claim being in their name, it stays your name. Granted, if an assignment occurs the agency will owe you a fiduciary duty, however, you are essentially giving up your rights and should never do this. Collection agencies can go out of business overnight and/or collect money and not remit to the original creditor. It has been known to happen. If you go to a collection attorney they represent YOU, and they are not going to risk their practice and years of expensive schooling by not looking out for your best interests.
Maybe you are thinking, “If my account goes to a collection attorney anyway if the agency cannot collect, why not take two bites at the apple?” As we discussed, the collection agency is likely going to charge you a higher contingency. Also, the account may no longer be in your name. Of additional importance is that now that the collection agency is involved they will stay involved even once the account goes into litigation because they have a vested interest in it. So instead of dealing with the attorney directly, you are still dealing with the collection agency who is dealing with the attorney. He is essentially their attorney, not yours.
So if you have collection needs think about your options and then contact a collection attorney near you. A few resources may be contacting your state bar association, The General Bar, the CLLA, or simply ask a local business or two who they recommend.

What happens when that day finally comes that you have finally brought your debtor to his knees, you’ve slain the dragon, taken Goliath down with a single stone or whatever metaphor you want to use. The fact is that you’ve gotten PAID! You just can’t ride off into the sunset just yet. You have to satisfy the judgment. That means another document from the court. Again just a very simple form, but one the court needs so that they and everyone else knows that the judgment is paid and justice has been done. Like Judgments, Satisfaction of Judgments are picked up by credit reporting agencies and failure could potentially land YOU in hot water.
Procedurally, most courts will require that you have the Satisfaction of Judgment or Acknowledgment of Satisfaction of Judgment notarized so either make sure you find out if you need to or just have it done, it can’t hurt.
Another thing you need to consider is whether you filed and recorded an Abstract of Judgment and/or UCC lien. If so, you will need to undo what you have done. This means recording the Satisfaction of Judgment or Release of Abstract if you recorded one and obtaining a Release of Lien form or its equivalent from your Secretary of State filling it out and filing it with them.
I know that this extra step(s) may seem like a bit of a bother, but if you are carrying this step out then that means you got the end result that you wanted. It’s the same thing I tell wealthy people that complain about paying so much in taxes…”You wouldn’t have to pay any money if you weren’t making any!”

Something most people do not realize about judgments is that most of them go uncollected. Sometimes because those possessing the judgments do not know how to access the judgment debtor’s assets, but more often than not it is because they do not have any…well, at least not enough to pay off the judgment. Unfortunately, most judgments get written off as bad debt. Let’s assume for a minute that this is the case with your judgment. What do you do?
What you do depends largely upon who your judgment is against. Is your judgment debtor an individual or some type of corporate entity or LLC? If it is an individual, and you believe that they may own a home, then you should obtain from the court what is called an Abstract of Judgment. Much like the Writ of Execution it is generally a simple single form that will require little more than your information, the debtor’s, and the details of the judgment. Also, much like the Writ there is a nominal fee that applies.
Once you receive the Abstract back, you take the original copy and attach a Recorder’s Cover Sheet to the front of it. The cover sheet is a simple form that states that it is an Abstract of Judgment, the parties’ names, and the case number. Then either take this down to the recorder’s office in the county that you believe the debtor lives or call the recorder’s office to find out the fee for recording your document and mail it in to them. In a few weeks you will have your conformed copy back from the recorder’s office with the date and number of recordation. The effect of this recorded abstract is to cloud title and/or place a lien on the debtor’s home so that if he/she decides to sell or re-finance their home, you will get paid via escrow. It doesn’t always pay off, but it is a good safety net to have. Plus, it is always fun to get that call from the escrow company!
If your judgment debtor is a corporation, then you may want to log onto your state’s secretary of state website and there you should find a form that allows you to place a UCC (Uniform Commercial Code) lien on the business. Traditionally, there is not much force and effect from these liens unless the business is sold (even then there are ways around it), but the expense is usually nominal and you can rest in the satisfaction that you have done everything possible and taken that extra step.
Aside from these two (2) methods you may be able to contact any licensing or regulatory boards or associations that the judgment debtor belongs to. Depending upon their particular rules and regulations they may be able to place pressure on your debtor via suspension, probation, or maybe just plain peer pressure. These steps may be a last resort, but all of them have worked in the past and they will continue to work in the future so do YOUR due diligence and make the extra effort. It just may make it all worthwhile.

Once you have the Writ of Execution you can go any number of ways. You could levy a bank account (this is why you try to have that information on hand), you could place a sheriff “keeper” in their place of business (they will take any cash on hand, inventory or even seize it…for a price), garnish wages, or even seize personal property like cars or boats. Just know that there are limitations though (ie. they could claim certain things are exempt or off limits) and these methods of levy do cost money. Also, the writ is only good for a period of time (usually 6 months) so be sure that you make the most of it.
Just keep in mind that these different means of levy run more or less through the local sheriff’s department. In order to obtain their services you will have to fill out a form in order to give them instructions as to what you want done, to whom, and for how much. Once the levy goes in the Sheriff will do as instructed and in a few weeks you will receive a report stating that they satisfied the judgment, received a partial satisfaction of the judgment or received nothing at all. Once the levy “hits”, before you receive your report, you may even get a call from your debtor telling you he wants to work something out (oh, now he wants to work something out), and there is no better feeling that knowing you’ve got him.
If that does occur, I believe that a bird in the hand is worth two in the bush, so do not release any levy or funds! The debtor may tell you, that he will promise payment next week if you will release his bank account because he has some important bill that needs to be paid. Who knows what promise or story will be told, but do not do it! If they renege, you will have to pay the Sheriff again, lose more time, and the assets will likely have been moved…or spent.

Now that you have a judgment against your debtor, did you think they were just going to hand you the money? Sometimes they do, but most of the time you have to go get it. Afterall, a judgment is just a piece of paper that says X owes Y money. Like an IOU, and if they don’t make good on it, then you have to go collect it.
At this point you could go hire an attorney or turn it over to a collection agency, but why? You’ve already done all the hard work. What you need is called a Writ of Execution. It is a form that allows you to actually act on the judgment you have. It allows you to execute on it (thus “Writ of Execution”). Again it will likely vary by state, but it will generally be a pretty simply one page form with a proof of service by mail on the back. It will ask for your debtor’s name and address. It will ask for your judgment date and amount, and then you could probably tack on the cost of the Writ (find that out when you get the form, but it should be nominal) and interest from the date of the judgment (post-judgment interest). Fill out the debtor’s mailing information on the back (you will have to sign or have another person sign and mail it for you after you get it back from the court). Make copies (always have copies), and file it. When you go to file it they will give you an original copy back. That is what you need to move on to the next step. Execution!

If you do chose to jump into the deep end of the pool, good for you! It’s not that hard if you know how to swim. Generally, speaking litigation in small claims is a pretty simple game. It should be. In fact, they try to make it that way. It is designed for the lay person or the “average joe”. You should look at it in two (2) parts: pre-judgment and post-judgment.
PRE-JUDGMENT: The process is this. File your complaint, serve it, and go to the hearing…prepared. First, you are going to have to go online or down to your local courthouse. If you go down to the courthouse, see a civil clerk and tell them that you want to file a small claims action and you need the necessary forms. Technically, they are not allowed to give legal advice, BUT sometimes if you are nice, put on a smiley face, and act dumb they will help you out if you have any questions.
Once you have the forms, obviously, you need to fill them out. They will generally have instructions attached, but the most important things to keep in mind here are: who you are suing, why you are suing in that particular court, and amount you are suing for, and why.
First, who you are suing may seem simple at first, but it’s not always. You need to get the entity correct. For instance, if you are selling to a company called “ABC Company” and the person you deal with is Neal Johnson. Do you ABC Company, Neal Johnson, both or neither? The reason this is important is because if you sue the wrong person or entity it could possibly delay your case or more importantly affect the collectibility of your judgment later down the road. For this you may need to do a bit of research. Most states have a Secretary of State website where you can search for corporations by name. Is your debtor listed? If they are not there, you can try your county or city clerks office and ask for the business’ “fictitious business name statement” or “dba”. That will generally tell you who the owner of the business is. Even if it is Neal Johnson you are dealing with, it might be Joe Smith who is the actually owner. Sue Joe. You want the owner, not his employee(s).
As far as picking the court to file this in, this is important because the court has to have what is called “jurisdiction” so that they can legally hear the case. Basically, it has to be in THIER geographical area. Generally, this doesn’t mean your geographical area, it means the debtor’s geographical area. This can all get very convoluted, but generally speaking, if you file in the court nearest the debtor you should be good. Just check with the court first and give them your debtor’s address so they can confirm it is in their jurisdiction.
Of course, you want to state the basic facts of your case, but you also want to make sure you state the amount that you want specifically. Oftentimes, if you don’t know, then how is the judge to know.
Now that you have the paperwork filled out, make copies, pay the filing fee and file your complaint. Once you’ve got the “conformed” copies, you have to have them served. Some states may allow service by mail, which is great, but most will require that a process server do it for you. It is best to have a licensed process server do this so that they can give you a “proof of service” document so that you can prove to the court that your debtor was served if he doesn’t show, which happens regularly. The local Sheriff’s department will often have a civil division that will serve your paper for a small fee. Otherwise, hit the yellowpages and look for “attorney service” or “process servers”.
Before your trial date arrives, it is a good idea to go down to the courthouse and sit in on a small claims session so that you can see what happens and how the court operates. This will also take away some of the anxiety of the unknown on the day of trial. Don’t worry. You will be fine. You have the law on your side.
On the day of trial, please do yourself and everyone else a favor. Be prepared!
Have your documents in order. Have any originals and at least two (2) copies (one each for the judge and the debtor) “marked”. This is something you may want to find out when you go on your scouting mission. For example they might want them as A, B, C, etc or 1, 2, 3, etc.. Each court has their own system. Make sure that if you have any witnesses, that they are there and informed. Do you know what the debtor is going to say? How are you going to refute it?
Every judge is different, but most are going to conduct this the same way. You will tell your story first (without interruption), the debtor will tell their story and try to refute yours (without interruption), you will get a chance to rebut again as will the debtor until the judge has heard all he wants to hear.
The judge will generally allow each party to speak uninterrupted by the other party, but it is also natural for him to interrupt to ask questions along the way. If you want to stay on the judge’s good side (and I suggest that you do), DO NOT interrupt the other party or him, especially. Also, be as clear and concise as you can be and stick to business. The judge doesn’t need to hear that you think the debtor is an @)*$)*%#. First, he can form his own opinion and doesn’t need yours, and second, it is irrelevant. Trust me.
WHEN you get your judgment, make sure that you’ve calculated your court costs and service of process fees and that they are included, as well as interest. These are all items that are usually part of any award. Your interest would be calculated from either the date of last charge (if on account) or date of breach (if contractual). Most likely, the court will mail a Notice of Ruling or Judgment to you in the mail, but some courts may require that you submit a judgment form with all the figures included.

Either way, once you obtain your judgment, you are only half way to getting your money. Congratulations are in order, but the real celebration must wait. Our next article will discuss the in and outs of actually collecting upon your judgment.