Getting Businesses Paid - Pre Judgment
The following descriptions highlight some of the major steps we take in our collection process. It is not legal advice and skips over a tremendous amount of information. We help businesses get paid. After your reasonable efforts to encourage payment, let us help you retire that debt. Call Attorney Sweeney at (603) 589-8015.
- LETTER OF REPRESENTATION – Our initial letter to the debtor explains that our firm represents the plaintiff and demands payment or payment arrangement within 2 weeks (or per client timeline direction). This is sometimes enough to bring the process to a close.
- 2ND DEBTOR LETTER - If there is no satisfactory response within two weeks of the initial letter, the follow up letter informs the debtor that, since no payment arrangements have been made, a claim will be filed with the court if payment/arrangement is not received within 2 weeks. The follow up letter includes the claim to be filed and military affidavit (not for businesses) as enclosures. For debtors who have ignored all previous efforts, this is a final opportunity to resolve the matter without adding litigation costs to their debt.
- FILING THE CLAIM - If there is no satisfactory response to the 2nd debtor letter, the claim is filed after the client provides the filing fee. A claim may take different forms depending on the type of losses and the amount. Sometimes the uncertainty, formality, and slow time consuming nature of the court process are required to encourage payment.
- REGISTERED AGENT - If the defendant is a business, the name of a corporate officer or registered agent responsible for accepting court paperwork for the business must be included. We will locate the agent for service and make sure that the proper parties are included in the suit.
- RETURN DATE - The Court will assign a return date. The return date is that deadline for the defendant to file a response. The notice provided to the defendant indicates that failure to properly respond by the return date will result in a default judgment.
- INITIAL SERVICE ATTEMPT – Locating the defendant can be challenging in some cases. The Court will send an attested copy of the Complaint (provided by the plaintiff) to the defendant by First Class Mail. If there is more than one defendant, each will receive their own copy of the complaint. The court needs proof that the defendant has actually received the Small Claim Complaint before hearing the case. If the post office cannot deliver the complaint, the Court will notify the plaintiff. The plaintiff must then make service through the Sheriff, process server, or other methods.
- PERSONAL SERVICE - If the first attempt at mailing the claim to the defendant is unsuccessful, plaintiff may request to have the claim served by a sheriff. The plaintiff must then return the “Notice of Small Claim Returned” form with the appropriate box checked asking for personal service and providing an address for service. The Court will prepare documents for service by sheriff and change the return date to allow six to eight weeks for service.
- REQUEST NOT TO PROCEED - The plaintiff can also check the box on the Notice of Small Claim Returned marked “I do not wish to proceed at this time” and return it to the court. This keeps the claim open for two years, allowing the plaintiff to continue searching for a new address for the defendant without risking that the claim will be dismissed for lack of action. The plaintiff can request action at any time during the two-year period. At the end of the two years, if there has been no response from the plaintiff, the claim will be dismissed.
- DEFENDANT’S FAILURE TO RESPOND - If the post office does not return the mail but the defendant does not respond to court, the Court may determine that there is no proof that the defendant received a copy of the complaint. If the defendant does not respond in writing by the return date and the mail has not been returned to the court, the court may assign a new return date and prepare documents for service by sheriff and mail this to the plaintiff. It will then be the plaintiff’s responsibility to get the paperwork to the sheriff for service.
- PLAINTIFF’S FAILURE TO RESPOND - If there is no further request to proceed on a case, it may be dismissed. The court may also dismiss the case if the plaintiff fails to file a response to the Notice of Small Claim Returned in the time frame set by the court. Dismissal can also occur if the plaintiff fails to file the Return of Service form within the time frame set by the court.
- DEFAULT JUDGEMENT - Default occurs when there is proof of service and a defendant fails to respond to the court within seven days of the return date. The Court will issue a default judgement in favor of the plaintiff (if a Military Affidavit has been filed). A default judgement orders the defendant to pay the plaintiff’s claim plus costs within 30 days.
- DEFENDANT’S RESPONSE - If the defendant disputes that he or she owes the plaintiff the money as stated in the Complaint, he or she may request a hearing and the case will be scheduled for a hearing as the court calendar permits. Both parties will be notified of the date and time of the hearing at least 14 days in advance of the hearing.
- COUNTERCLAIMS - The defendant may file a counterclaim against the plaintiff if filed within 30 days of the return date indicated on the original claim. There is a filing fee. A timely response or appearance form must be filed even though defendant has an additional 30 days to file a counterclaim. The counterclaim must specify the nature of the claim and the amount of money sought by the defendant.
- HEARING ON THE MERITS – JUDGMENTS - After the Hearing on the Merits, the judge will render a decision. If a party fails to appear at the hearing, judgment will be rendered in favor of the party who did appear. The total amount of the judgment will include the amount determined by the judge plus costs and interest. In a default judgment, the judgment is entered for the total amount requested on the small claim complaint plus costs and interest.