If you have exhausted all other avenues trying to recover a debt that is owed to you or your business, you may want to explore the option of collecting the debt through the courts. Obviously, it will depend on the amount you are owed, but attempting to gain a judgement from a court of law can be a highly effective course of action.
Once you have obtained judgement, the amount awarded by the court must be paid by the debtor or else they will face serious legal consequences. Where final demands and solicitor’s letters might have failed to sway your debtor in the past, a judgement from a court gives you the legal power to enforce your claim.
Before launching any type of court case, it is important to remember that you should always obtain legal advice to determine your chances of winning, as well as to discuss the necessary steps throughout the process. If you lose the case and the debtor has hired their own legal representation, you may end up having to pay some or all of their legal costs.
Obtaining a judgement
The steps involved in obtaining a judgement from a court will vary depending on the court in which your matter is issued. As such, it is essential to seek legal advice from an expert in your local jurisdiction. Generally, the first step will be to file a Statement of Claim (SOC) with the court. The SOC should reference any contracts, agreements, terms or other communications surrounding the debt.
Once you have filed a SOC, it must be served on the debtor, or defendant. Each state has specific laws for filing and serving SOCs, as well as the amount of time that the debtor has to reply.
If the debtor does not reply to your SOC within the time provided by the legislation, then you are able to file for a default judgment to be made in your favour.
In most jurisdictions it is necessary to prove that the correct documents have been served on the debtor when an application for default judgment is made. This is why it is generally a good idea to use a process server to serve documents to ensure the relevant legislation is complied with. Also, where a document is required to be served personally, it is advisable to obtain the services of a process server as serving a document yourself can often lead to the debtor/defendant becoming aggressive and confrontational.
Enforcing a judgement
If a defendant does not comply with a court order, enforcement action can be taken, which might include the issuing of a:
- Writ for the Delivery of Goods (seizure of goods belonging to you)
- Writ for the Levy of Property (seizure of property to cover the debt)
- Garnishee Order (seizure of money from the debtor’s wages or bank accounts)
- Examination Notice (to ascertain the debtor’s financial position)
- Bankruptcy Declaration
- Liquidation Notice (if the debtor is a company).
As well as the debt, you can also claim the interest accrued from the time the judgement is made (known as post-judgement interest). Your legal representative can assist you in calculating this amount.
A more likely scenario following a judgement is that the debtor will seek to come to some kind of arrangement, such as paying off the debt in installments. If they do not have much in the way of assets, this may be the best possible outcome that is achievable.
Hopefully, you will never have to go to the lengths described here to recover a debt. A good way to ensure things never get to this stage is to hire a debt collection agency early on in the process. A good debt collection service has specialist knowledge and expertise at their disposal and can often recover a debt when every attempt on your part has failed. Operating within the law, they can successfully recover debts in a majority of cases and can save you the time, expense and stress of having to go to court.
Professional Debt Recovery for you …contact
Debt Recovery Associates. Persuasive, Persistence, Professionalism
Town Office-View Park Towers ,10th Fl ,Utalii Lane /
L584-off UN Avenue, Gigiri.
P O Box 27859 00100 Nairobi, Kenya
Tel +254-20-221 1382/362
Cell: +254 712 636 404