Three Things Your Attorney Should Advise You about Filing a Debt Collection Lawsuit
May 14, 2010 By Nitzkin & Associates
Attorneys are happy folks. They are happy to file a lawsuit on your behalf. However, you should take a moment and discuss a few things with your attorney to see if the lawsuit will ultimately make you happy.
Three things your attorney should discuss with you before you file a lawsuit to collect that debt.
You earned your money and your customer has not paid your invoice. You have sent several "gentle reminders" and you are still not getting paid. Of course, you are entitled to your money, but before you decide to file a lawsuit, there are some things that you should consider:
1. Think about negotiating a payment plan or a lump sum payment with a discount. Litigation can drag on for years. In the end, you may not get paid if the debtor is a corporation that goes out of business. The sooner you get your money or some money out of the debtor, the better off you are. Usually, as soon as the debtor is served with the lawsuit, your attorney will receive a telephone call from the other attorney. Your attorney and you should have, by that time, put a collection strategy together. This should include a payment plan over a period of months or a lump sum payment with a discount.
2. What happens if you are counter-sued? When professionals seek payments on their fees, a common defense tactic is to file a counterclaim for malpractice. If you have malpractice insurance, you probably have a duty to report the claim to your carrier. What most people don’t know is that a client can only file suit for malpractice within the shorter period of a. six months of when the malpractice was or should have been discovered or b. two years from the last date of service. Even if you are not in a professional service business, you may still be countersued. Your attorney and you should discuss this possibility and what additional fees, if any, he will charge in the event of a counterclaim.
3. The collection process is usually long. Usually it takes a minimum of 90 days to collect a debt through the legal process. From the date that the debt is placed with an attorneys’ office to the time that a suit is filed can be 14 days. This is because the attorney must verify the address of the debtor. Then, it can take up to another 30 days to serve the debtor with the complaint. If the debtor does NOT file an answer, the attorney can take a judgment 21 days after service. If the debtor does file an answer with the court, then he has added several months to the collection process. One can plainly see that our legal process, although the best in the world, is a time consuming one.
4. "It is not the principal of the thing." Speaking from experience, these words are usually uttered out of frustration by a client. The decision to sue someone or some entity is a business decision....purely a business decision. When a client chooses to turn a lawsuit into a vendetta, the client almost always gets a large bill from his attorney and ends up frustrated even more than when the legal process began. When deciding to file a lawsuit, remember its not the principal of the matter, its the profitability of the decision.
Conclusion
You are entitled to your money and absolutely should pursue your legal rights. However, before you file suit, you should speak with your attorney about a settlement strategy. This will speed up an otherwise long collection process. You also should discuss the possibility of a counterclaim since this is a very real possibility. Your attorney and you should discuss how she will handle your defense. Finally, you should know that the collection process can be long and in the end, not profitable. Make your decision to file a lawsuit or not as a business decision and not an emotional one. By having the proper expectations before filing suit, you will save yourself needless frustration.
ABOUT THE AUTHOR: Gary Nitzkin
Gary Nitzkin is an attorney and like his father, Don Nitzkin, is a Certified Public Accountant. In order to become licensed as a certified public accountant, one must pass the nationwide uniform examination and perform two years of service in public accounting. During his tenure in public accounting, Mr. Nitzkin worked with other attorneys and learned how debtors attempt to hide assets and liabilities on financial statements and tax returns. He formed Nitzkin and Associates, a law firm dedicated to debt collection. He frequently draws upon his skills as a certified public accountant to review debtor financial information and to identify assets that debtors attempt to conceal from collection. He contributes to our firm's blogs on Michigan Debt Collection and Debtor Defense. When he is not in the office, he enjoys karate and bicycling.
Copyright Nitzkin & Associates
More information about Nitzkin & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
You earned your money and your customer has not paid your invoice. You have sent several "gentle reminders" and you are still not getting paid. Of course, you are entitled to your money, but before you decide to file a lawsuit, there are some things that you should consider:
1. Think about negotiating a payment plan or a lump sum payment with a discount. Litigation can drag on for years. In the end, you may not get paid if the debtor is a corporation that goes out of business. The sooner you get your money or some money out of the debtor, the better off you are. Usually, as soon as the debtor is served with the lawsuit, your attorney will receive a telephone call from the other attorney. Your attorney and you should have, by that time, put a collection strategy together. This should include a payment plan over a period of months or a lump sum payment with a discount.
2. What happens if you are counter-sued? When professionals seek payments on their fees, a common defense tactic is to file a counterclaim for malpractice. If you have malpractice insurance, you probably have a duty to report the claim to your carrier. What most people don’t know is that a client can only file suit for malpractice within the shorter period of a. six months of when the malpractice was or should have been discovered or b. two years from the last date of service. Even if you are not in a professional service business, you may still be countersued. Your attorney and you should discuss this possibility and what additional fees, if any, he will charge in the event of a counterclaim.
3. The collection process is usually long. Usually it takes a minimum of 90 days to collect a debt through the legal process. From the date that the debt is placed with an attorneys’ office to the time that a suit is filed can be 14 days. This is because the attorney must verify the address of the debtor. Then, it can take up to another 30 days to serve the debtor with the complaint. If the debtor does NOT file an answer, the attorney can take a judgment 21 days after service. If the debtor does file an answer with the court, then he has added several months to the collection process. One can plainly see that our legal process, although the best in the world, is a time consuming one.
4. "It is not the principal of the thing." Speaking from experience, these words are usually uttered out of frustration by a client. The decision to sue someone or some entity is a business decision....purely a business decision. When a client chooses to turn a lawsuit into a vendetta, the client almost always gets a large bill from his attorney and ends up frustrated even more than when the legal process began. When deciding to file a lawsuit, remember its not the principal of the matter, its the profitability of the decision.
Conclusion
You are entitled to your money and absolutely should pursue your legal rights. However, before you file suit, you should speak with your attorney about a settlement strategy. This will speed up an otherwise long collection process. You also should discuss the possibility of a counterclaim since this is a very real possibility. Your attorney and you should discuss how she will handle your defense. Finally, you should know that the collection process can be long and in the end, not profitable. Make your decision to file a lawsuit or not as a business decision and not an emotional one. By having the proper expectations before filing suit, you will save yourself needless frustration.
ABOUT THE AUTHOR: Gary Nitzkin
Gary Nitzkin is an attorney and like his father, Don Nitzkin, is a Certified Public Accountant. In order to become licensed as a certified public accountant, one must pass the nationwide uniform examination and perform two years of service in public accounting. During his tenure in public accounting, Mr. Nitzkin worked with other attorneys and learned how debtors attempt to hide assets and liabilities on financial statements and tax returns. He formed Nitzkin and Associates, a law firm dedicated to debt collection. He frequently draws upon his skills as a certified public accountant to review debtor financial information and to identify assets that debtors attempt to conceal from collection. He contributes to our firm's blogs on Michigan Debt Collection and Debtor Defense. When he is not in the office, he enjoys karate and bicycling.
Copyright Nitzkin & Associates
More information about Nitzkin & Associates
View all articles published by Nitzkin & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
