DEBT RECOVERY PROCESS
Members from out network explain the debt recovery process so you can understand the steps in place.
Welcome!
Entrepreneurs doing business internationally should also monitor their cash flow.
Having knowledge of amicable collections and the country-specific legal phases surrounding collections is essential for survival in a global economy.
EuroAvocat aims to help with this by providing an overview per country of relevant (legal) facts and circumstances that are important in debt collection.
At the bottom of each article the details of the relevant lawyers in that country are given, including telephone numbers where they can be reached for further information (without obligation).
New countries will be added in the coming months with the intention of having a complete manual available by the end of 2023.
We are sure that you will find this Dept Collections handbook usefull!
Hans Pijnacker
President EurAvocat
April 2023
If all amicable debt recovery actions have been tried (e.g. sending letters by mail to debtors along with faxes, phone calls, and emails) and it’s still not possible to collect the debts within 30 days, will it be viable to file a lawsuit?
According to Portuguese law, there are two prescription periods regarding invoices covering the supply of goods:
- An ordinary delay of 20 years (article 309.º, Civil Code);
- A delay of 2 years, which only applies to traders’ credits resulting from goods sold to non-traders (article 317º, paragraph b), Civil Code).
Apart from the Greek General Commercial Register (GEMI) where all companies are registered, one can collect information on companies from data bases functioning on a fee basis for providing a company profile, legal representatives, financial statements, risk evaluation, credit limits etc.
Further investigation is done with the online cadastre (ongoing project which for the time being doesn’t cover the entire Greek territory) which provides information on the possible real estate property, mortgages etc... of the debtor and its legal representatives (for personal companies).
Usually, as the first step the so called amicable debt recovery actions are tried, e. g. sending letter by post or by mail, and/or phone calls with debtor or its legal representative.
It is not mandatory to send the certain amount of letters to the debtor before the lawsuit is filed, however, it is common to send to the debtor maximum of three (3) letters.
The debtor is allways asked to pay voluntarily also interest, either in the amount established in the contract (general conditions) or in the amount established by law.
Currently, there is the interest rate in May 2023 set at 11,75%.
Enforcement of monetary claims in Austria. If one proceeded directly with legal action without a prior reminder, one would run the risk that the opponent would (immediately) acknowledge the claim and in this case the plaintiff would have to bear all the costs of the legal proceedings but if the debtor is in default, the payment of default interest at the rate of 4 % p.a. can be demanded according to §§ 1000 iVm 1333 ABGB (Austrian Civil Code). For B2B transactions, Art 8 (6) directive on combating late payment in commercial transactions provides for at least 8% above the sum of the reference rate. The Austrian legislator has implemented this EU requirement in Section 456 of the Austrian Commercial Code (UGB), according to which a claim to 9.2% above the prime rate exists in the event of default in B2B transactions if the debtor is responsible for the delay. The debtor bears the burden of proof that he is not responsible for the delay.
There are several types of corporate structures under which commercial business may be conducted in Sweden, but the far most common type is the limited company ("Aktiebolag" abbreviated "AB").
Other rather common types are the partnerships ("Handelsbolag" and "Kommanditbolag" abbreviated "HB" and "KB").
Some small businesses are run by a person in his own name ("Enskild firma").
Aktiebolag - No personal responsibility for the shareholders apart from their share capital. Directors might be held personally liable for the debts of the company in exceptional cases. The minimum share capital is SEK 25,000. For companies who want to be able to offer shares to the public, the minimum share capital is SEK 500,000.
Handelsbolag - No limitation of liability. All the partners are liable for all undertakings and obligations of the partnership. Limited companies may however be partners.
The process of recovering a debt usually begins with the creditor sending one (or several) dunning letters/reminders to the debtor demanding payment of the amount due.
In addition to the speed of an out-of-court debt collection and the favourable costs, one reason for this approach versus immediately initiating legal action against the debtor is provided by Section 93 of the German Code of Civil Procedure (ZPO – Zivilprozessordnung). Thereafter, where the defendant has not given cause for an action to be brought, the plaintiff shall bear the costs of the proceedings should the defendant immediately acknowledge the claim. In principle, the debtor gives a cause of action if he did not fulfil the later acknowledged claim before the proceedings, although the claim was due, and the plaintiff sent a dunning letter according to Section 286 of the German Civil Code (BGB – Bürgerliches Gesetzbuch) - unless such letter is dispensable exceptionally, e.g. when the parties agreed on a fix payment term or when the debtor definitively refuses performance.
This is a brief rundown on the procedure for debt recovery in England and Wales. Before making a claim to recover debt, the creditor must send the debtor a letter before claim, that is compliant with the Court rules.
The letter before claim should set out the basis on which the claim is made, give a breakdown of the debt, enclose the documents on which the creditor relies such as invoices and agreements under which the debt falls due and outline the next steps including the deadline for the debtor to respond by. The letter should also confirm that should the letter not be responded to, then the creditor will start Court proceedings.
There are different rules for consumer debts compared with business to business debts.
In the extrajudicial phase, the first step is to find out where the debtor is domiciled, by obtaining information from the trade register of the Chamber of Commerce or by requesting an extract from the register of persons in the case of a private debtor. Lawyers in the Netherlands have the right to request an extract from the register of persons from private individuals as part of the preparation of proceedings. This is followed by sending one or more dunning letters/reminders to the debtor requiring payment of the amount due.
Legal interest can be claimed on the amount of outstanding invoices from the related due date. Since 1 July 2023, the annual statutory interest rate is 6% for non-commercial transactions or 12% for commercial transactions.
The Spanish Civil Code provides that, in order to claim interest for late payment from the due date of the debt, the interest must have been expressly agreed in the contract or there is a Law that expressly declares it.
In general, if the accrual of interest has not been expressly agreed, Article 1,108 of the Spanish Civil Code provides that legal interest (3.25%) shall accrue from the time the creditor demands performance of the obligation from the debtor, either extrajudicially or judicially.
Hence the importance of determining the debt (principal + interest in arrears) as soon as possible and claiming it out of court, since otherwise only the interest can be claimed from the filing of the lawsuit.
Before deciding how to recover a debt from a debtor, it is always a good idea to check in the Hungarian database who the debtor is: What is the business relationship with the debtor and what is the debtor's financial situation. There are ways of obtaining company details, data and annual accounts. These will show the debtor's financial situation. You can see whether there are any enforcement proceedings, liquidation or bankruptcy proceedings against the debtor.
1. Out-of-court debt collection
Although it is no longer mandatory in Hungary to try to reach a settlement before litigation, it is still recommended and customary for the legal representative with a power of attorney to send a letter of formal notice to the debtor.
Under Swiss law, the enforcement procedure to recover debts of money is governed by the Swiss Federal Act on Debt Enforcement and Bankruptcy ("DEBA").
The originality of the Swiss system lies in the possibility of lodging a compulsory enforcement request, known as a summons to pay, before the claim has been judicially verified.
The Debt Collection Office (hereinafter: the "Office"), a state body whose activities are subject to specific judicial control, responds to the creditor's request regardless of whether the claim exists or not. It is up to the debtor to contest the claim by lodging an objection.
The debtor is still sufficiently protected, since a simple declaration on his/her part will prevent the proceedings from continuing. However, if the debtor does not react, the proceedings move on to the second phase, which is the seizure of the debtor's assets.
Although there is no legal obligation to send a formal notice to a debtor before proceeding with the judicial recovery of a debt, unless this obligation has been contractually agreed, it is still customary to first send a formal notice to the debtor.
The creditor may :
- serve formal notice by bailiff; or
- send a formal notice by registered letter with acknowledgement of receipt directly to the debtor.
In the case of a debt secured by a guarantee, the formal notice must also be sent to the person who has acted as guarantor.
A prior formal notice shall be sent by the creditor to the debtor by register letter with acknowledgement of receipt. Such formal notice has two advantages:
As attempts to solve amicably the dispute is mandatory, an unsuccessful notice can be used as evidence of such attempts before a jurisdiction.
Legal interests can be claimed from the presentation of the notice (1231-6 Code Civil for contracts, 1344-1 Code Civil for general cases)
Rates of legal interests are different whether the debt is or is not a professional one, e.g. for the 2nd semester 2023 : 6,82 % for nonprofessional debts and 4,22 % for professional ones.
Contractual interest can also be applicable.
Debts can usually be claimed, except specific issues, for 5 years from their due date.
Formal notice does not interrupt such time limit to claim debts.
For judicial collection in Bulgaria and if the amicable phase has not been successful, The filing of a suit for performance by a creditor against a debtor can be made before the relevant regional or district court of registration or residence of the debtor. Claims for up to BGN 25 000, -- (EUR 12 500) can be "led before the district court and for a claims of higher value the competent court is the regional court. The proceedings start with a statement of claim filed by the claimant to which evidence is attached and evidentiary requests are made. The defendant has a one-month deadline to respond to the statement of claim, and also has obligations to present evidence and make evidentiary requests.
After the exchange of papers, the court schedules an open court hearing where the respective procedural actions are carried out depending on what is stated by each of the parties. Several open court hearings may be scheduled to gather evidence and perform other procedural actions. The proceedings before the first instance court take 6 to 12 months.
In Poland, the pre-court stage of debt recovery is most often preceded by an attempt to resolve a dispute out of court. The court proceedings may be long and costly, which is why the creditor often decides first to send the debtor a request for payment. The legal provisions do not establish any formal requirements for a letter containing a request for payment. However, it should indicate in a clear manner what claim the creditor is demanding.
Therefore, the demand letter should:
- specify the basic information concerning the claim (precise the legal relationship this claim arises from, the amount of the claim and the deadline by which the debtor was initially supposed to satisfy this claim),
- set a time limit within which the debtor should comply with the contents of the demand, and
- indicate how the claim is to be satisfied (e.g. payment into a specific bank account of the creditor).
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