Any creditor to whom you owe money is obliged to collect its debts and to implement adequate and proportionate means allowing you to regularize your situation.
Discover our article for the see the different steps and regulations on amicable debt collection and judicial collection.
The different proceduresdThe different recovery procedures
Judicial recovery
Your creditor may choose to use the following methods of judicial collection of his debt by appealing to the courts under different approaches :
- The injunction to pThe injunction to pay is a fast and inexpensive procedure, allowing a creditor to force his debtor to pay him. It is a fast and non-contradictory procedure which forces the debtor to respect his commitments.
- The provisional injunction is an emergency legal procedure that can be carried out froms no serious dispute has been raised. This procedure allows you to quickly obtain the condemnation of your debtor with the executory formula if no opposition is made within the 1 month deadline.
- The summons on the merits is a judicial procedure of recovery which allows to judge the file on the merits by holding a contradictory debate. The representation by a lawyer is mandatory for this type of procedure.
Amicable collection
Nevertheless, it is always advisable for the creditor to initiate amicable collection procedures by avoiding in the first instance to to take his case to court. the courts.
Indeed, an amicable procedure allows to preserve the customer relationship and often leads to the recovery of the faster and at a lower cost.
When the first reminders on behalf of the creditor have not been successful it is advisable to use the services of a specialized collection agency that will be able to make your debtor understand, while preserving the customer relationship, the importance of freeing himself from his debt.
The collection agency has the in-house skills and tools, but also a great deal of experience in negotiating with debtors.
Moreover, psychologically, the debtor will easily understand that this is the last step before a possible legal action and will react much faster to the demands made to him.
Finally, the collection agency can also act as an intermediary and provide very useful information in the context of customer satisfaction by preserving the brand image and reputation of the creditor.
Amicable debt collection by collection agencies
The services provided by the collection agency were often only available to large companies and SMEs and self-employed people did not find solutions adapted to their low number of unpaid invoices.
The advent of digitalization of exchanges and the arrival of debt collection agencies such as LEGALCITY, 100% online and 100% digitalized, has made it possible to break down the barriers to entry and to give small and medium-sized businesses and the self-employed the opportunity to benefit from the same collection services as larger companies.
This activity of debt collection answers to a strict regulation and it will be advisable to check well if the Cabinet that you will mandate respects the rules related to the profession.
How to collect a debt out of court
More and more tools, integrated or not with accounting software, exist to help company managers and accounting departments in the amicable collection of their debts. These cash management tools allow you to set up preventive and curative reminder cycles on behalf of the company while respecting the so-called "classic" rules of amicable debt collection.
Thus, at some point in the process it will be necessary to send a formal notice to the debtor inviting him to regularize the situation. This letter will have to specify all the characteristics of the debt in order to show the character, certain liquidity and exigibility of the claimed sums.
Go through a ccollection agency also ensures that mail exchanges will be in accordance with the appropriate legal terms of the current legislation and in compliance with the Act.
- Thus to indicate that the costs of collection of the claims incurred are exclusively at the expense of the creditor, except if these costs concern an act which the law has prescribed to the creditor or if these costs have been incurred by the creditor as a result of the bad faith bad faith of the debtor (a simple example: the creditor can charge collection costs to the debtor if the latter has the debtor has issued a bad check...)
- If you are a debtor and agree to settle your debt amicably, upon request to the Collection Agency you will obtain a certificate indicating that you have settled the situation and that the amicable collection procedure is over.
- Beware of certain practices of some collection firms.
Legalcity whose rating you can see on Trustpilot attracts your attention also on the choice of your collection agency.
You can see on its blog a very interesting article from the DGCCRF which will make you aware of the importance of this choice which should lead you to choose a professional partner who will guarantee your reputation and your customer relationship.
As a collection agency, LEGALCITY will never act against your your instructions and will systematically favour an amicable collection method.
Prior to judicial recovery for which the cabinet can accompany you and depending on the nature of the dispute or litigation, you will also be offered to spendtion through Mediation by using the Mediation Platform JUSTICITY.
Judicial collection: thehe partnership between collection agencies and bailiffs' offices
As ministerial public officers, judicial officers are the only ones the only ones authorized to enforce court decisions.
They are therefore involved in the judicial recovery of debts.
However, if you decide to entrust an amicable debt collection to a bailiff, you should know that it is possible. However, there are no 100% online and 100% digitalized services for the amicable collection of debts such as the one developed by LEGALCITY for small and medium-sized businesses and the self-employed.
On the one hand, you will never be able to follow the progress of your files from a customer area and on the other hand, in the context of an amicable procedure, involving a bailiff is not conducive to a serene and lasting relationship with your debtor.
At Legalcity we have established a partnership with a network of bailiffs, but this privileged relationship only allows them to intervene when a legal procedure is implemented in agreement with our legal department, which ensures the relationship with the creditor.
Good to know :
The receipt of a bailiff's letter is not necessarily the consequence of an enforceable title and its formal notice should allow you to know if it is a simple friendly letter or a service of a deed or an enforceable title.
The use of a cThe use of a collection agency systematically removes any doubt from your debtor who knows that your approach is above all amicable. It allows to restart discussions and an intermediation with the aim of recovering your debt by means of an agreement or a protocol.
There is also a procedure for the recovery of debts of less than 4000 Euros introduced by the Macron Law and allowing the bailiffs to settle the debt by amicable means but still deliver an enforcement order following the acceptance of the debtor.
This procedure does not work well or even not at all at all because most debtors do not want to agree to the issuance of an enforcement order, whereas without it an agreement is always possible.
Indeed, there is a contradiction in this law which means that if the debtor refuses or cannot pay his debt punctually, even if he had previously accepted the procedure, the judicial officer can proceed to the forced collection of the debt, without going through the judge. Moreover, the bailiff who will have obtained the agreement cannot be the bailiff who will proceed to the execution, which further complicates the procedure!
It is strictly forbidden to charge the debtor for the costs of judicial or amicable collection.
It is important to specify that it is forbidden to charge the debtor for the costs of amicable collection. These costs, with rare exceptions, must be borne by the creditor except :
- When the costs concern an act which the creditor is required by law to perform (for example, the order to pay an insurance premium or rent)
- When the costs have been incurred as a result of bad faith behaviour by the debtor. However, this bad faith must be proven by bringing the matter before the enforcement judge
- When the expenses incurred could not be collected following the issuance of a bad check
- When the relationship between the Debtor and the Creditor is professional, the creditor can claim a fixed compensation of 40 Euros per claim
The simple fact of charging collection fees to a debtor is punishable by a criminal penalty of 2 years imprisonment and a fine of 300,000 Euros.
The amount of the fine may be increased, in proportion to the benefits derived from the offence, to 10% of the average annual turnover, calculated on the basis of the last three annual turnovers known at the time of the offence. Seerticle L121-21 and L132-23 of the Consumer Code.
Good to know:
If your debtor pays you out of court, you will not be able to claim collection fees, except in the cases described above.
The collection agency must have an escrow account declared to the Public Prosecutor and a professional liability insurance specific to the profession.
Make sure that your reminders are made by a firm that respects the rules of the profession and do not hesitate to look at the ratings on sites such as Trustpilot for example for example.
