Debt Collection is the process where an attorney collects money on behalf of a client. If your client/customer fails to pay a debt he/she owes you, then you can then take legal action against them to collect your money.
There are a few things to consider before proceeding with legal action, for example:
What notice must be given to the other party – must you send a letter of demand;
What documents must be prepared – do you have agreements in place, invoices, and quotes;
There are different types of courts in which civil cases are heard, the Lower Courts are limited to certain classes of action and to claims where the value in dispute does not exceed a certain amount. Superior Courts can hear any type of action and there is no limit to the amount of money claimed.
The Jurisdiction of a Court (where you will sue the client/customer) is defined in terms of
Area in which the action arose,
The district in which one lives, works or owns property,
The basic process of an undefended debt collection is:
Letter of demand
A letter of demand is sent to the debtor demanding the payment of the debt. It is an advantage for this to done by an attorney because they ensure that the letter meets all the legal requirements of a demand.
Summons
If there is no response to the letter of demand, the next step is the issuing of summons. These are claims for liquidated (where the amount is known or easily calculated) amounts of money. A summons will contain all of the required information so that the court and debtor is aware of the claim and the particulars of how the amount owing is made up. A Sheriff will serve the summons on the debtor’s place of business, where they live or place of employment to a person not less than 16 years of age. If the debtor admits liability to the demand made against him/her, he/she must either pay the full amount owing or sign an Acknowledgement of Debt and pay the debt in regular instalments.
Default Judgement
If the debtor does not respond to the Summons, you can apply for a judgement called Default Judgement. The default judgement must be accompanied by the letter of demand and a return of service from the Sheriff.
When judgement is granted against the debtor, the creditor has three ways to recover the money owed.
Warrant of Execution
Execution is a way of enforcing the judgement when the debtor fails to pay the sum ordered in the judgement. Once a warrant has been issued, the Sheriff attaches the movable property of the debtor such as cars and televisions which will cover the debt owing. The Sheriff then sells the property at a public auction, if there is not sufficient movable property, the Sheriff attaches the debtor’s immovable property.
For any queries regarding the above or assistance with your debt collection or any other litigation needs please contact Myers Attorneys on 011 346 2422 or stellah@myersattorneys.co.za
You can also visit our website www.myersattorneys.co.za