How to recover a bad debt. There are a number routes you can take to recover a bad debt.
If you are owed money you need to be honest with yourself. How good a client or customer is it that owes you the money? Does their relationship with you justify them treating you like a bank?
What Is A Bad Debt?
A bad debt is not necessarily a debt that cannot be recovered. However, at the time it is considered difficult or unlikely to be recovered.
Generally it is unacceptable for a debt not to be paid but there can be circumstances in which it is difficult for the company or business to pay it because it does not have the money to do so. This will be the case perhaps if the company is insolvent.
If someone owes you money and you are reading this it is likely that your patience has run out. It is likely that you have been ignored, given excuses for non-payment that you are not satisfied with or even that you have been the victim of a fraud. It is therefore time to push the squid ink to one side and focus on recovery of the debt.
Do It Yourself?
The first thing you need to consider is how you want to tackle the recovery process. Do you want to hire professionals or do you want to do it yourself? Is your time worth it?
There are certain things you can do yourself with ease, which are not time consuming and which can arm you with information.
If the debt is disputed on proper grounds, then that is outside the scope of this guide. You will need to address the dispute before you can look to recover the money that you say is due.
If you are in difficulty collecting a debt the law is on your side. If there is an insolvency it does not follow you will not get any of your money back.
This perception is one the major reasons that people in effect give up early when they are looking to collect a debt. This is a self-defeating position that is one to treat with caution even if an insolvency arises.
How To Recover A Bad Debt Without Taking Legal Action
Contact the Customer To Recover A Bad Debt
The first thing to do to recover a bad debt is to speak to the customer or client and find out why they are not paying you. Armed with this information you can decide your next steps.
It is important that you keep a record of your discussions or emails so that you can refer to them later. This will be important if you have to take legal action.
Formal Letters Demanding Payment
If payment is promised but is not forthcoming then you can escalate matters to writing formal letters or emails demanding payment of the debt. You can send these by email instead if you wish. Email is a good option because you will have an instant record of your request. Email is just as good as a letter.
Keep the letter factual and if payment is still not forthcoming then send further reminders. It is a good idea when attempting to recover a bad debt to refer to and enclose (or attach) a copy of the initial demand letter (or email) when sending in reminders. That way someone will not be able to suggest that they have never received the original demand for payment.
Letter Before Action
A letter before action is a letter that formally notifies someone of your intention to bring legal proceedings to recover the debt.
In a letter before action you should set out the amount owing, the timescale for payment should be clearly set out (something like 7 or 14 days is a good idea) and the threat to issue legal proceedings.
Debt Mediation Services To Recover A Bad Debt
Debt mediation services are available to enable you to come to an agreement over a debt. If you and your customer agree to enter into mediation then you may well be better off in the long run because debt recovery can be an expensive, time consuming and difficult affair.
There are many skilled mediators who will be willing to lend their hand to assist you in such matters.
Debt Collection Agencies
There are many good debt collection agencies that will try to collect your bad debt for you and take a fee. Such organisations can and some do act on a no recovery no fee basis.
It is important when you instruct such collection agencies that you read their terms and conditions carefully so that you know what you are signing up to and the service that you are looking for is being provided for the appropriate fee.
Legal Action To Recover A Bad Debt
If however despite your best efforts following the above approaches you are still unable to recover the bad debt then the next stage in the process will be to escalate matters towards legal action.
It is worth remembering that legal action can be expensive, so before you rush to instruct lawyers it is worth sending a final letter before action giving the debtor one final chance to settle the debt. In some instances you will find that your persistence will pay off.
If however it does not then this guide on how to recover a bad debt now moves onto the legal options available to you.
Instruct Lawyers To Recover A Bad Debt
The next stage in the proceed of how to recover a bad debt is to instruct lawyers.
In many instances the lawyers will issue a formal letter before action on their letterhead explaining the consequences of not paying, such as the prospect of legal action and that interest will become due under the late payment of commercial debts legislation.
However, it is worth remembering that whilst a solicitors letter does signal real intent on your part to pursue matters and that lawyers will have the legal expertise to ultimately bring the matter to conclusion for you, such a letter is just a piece of paper and it is another stage in the recovery of a bad debt process.
If you expect a simple letter informing someone that you intend to bring legal proceedings, even if written on an impressive letterhead by a regulated firm, to produce a recovery then perhaps think again.
The simple truth of the matter is that many people know that threatening legal proceedings is not the same as issuing legal proceedings.
Depending on the sums involved there are options for you to do this yourself. If the sums are for less than £10,000 then you can issue a Money Claim online. Even if there bigger sums involved you can still undertake the process yourself but you will need to consider if you are able to do that. There are lots of rules that need to be complied with known as the Civil Procedure Rules which is why lawyers can be very useful to you.
However, before you embark upon litigation consider if you have sufficient information about the party that owes you the money and if they are likely to be worth powder and shot. People might plead poverty but that does not mean it is necessarily the case.
If the customer or client is however still not engaging with you to your satisfaction then the next stage in the recovery of a bad debt process is to start Court action. The Court has the power to order the repayment of the debt.
County Court Proceedings To Recover A Bad Debt
County Court Proceedings are legal proceedings issued in the local county court. Once the proceedings have been issued the debtor will have 14 days to pay the amount owed to you or make an arrangement to pay you by way of installments. However, it is open to the debtor to dispute the debt, in which case the matter will go before a judge to consider if it is due and owing. However, if the debtor does not dispute the debt but does not pay it or simply continues to ignore the matter then the Court will issue what is known as a Country Court Judgment (“CCJ”).
A CCJ is an order of the Court that confirms that a debt is due and owing to you. If this does not prompt payment from the debtor then you can take further action to recover the bad debt. It is worth noting that a CCJ is a serious matter for anyone because it goes on their credit record that can be searched and therefore may impact on their ability to obtain credit in the future. If someone has CCJ’s registered against them then this could affect their ability to successfully trade.
Controlled Goods Agreement
A Controlled Goods Agreement will arise when a bailiff attempts to recover the debt that remains unpaid after a court order.
If the bailiffs are unable to recover the debt when they turn up then can take away business assets that are needed to trade such as motor vehicles, plant and machinery etc. These can be sold at auction to help you get your debt paid.
If the debtor enters into a controlled goods agreement but then does not stick to it the bailiffs can return and remove the goods referred to in the agreement.
In order to collect a debt that has been ordered by the Court to be paid such as by way of a CCJ then you can apply for a charging order over certain assets of the debtor. Typically this will be in respect of land and buildings but it can extend to other assets such as shareholders for example only.
Once the charge is in place it is possible to escalate matters so that you can force the sale of the land or the shares. The costs of that part of the process will be recoverable from the debtor’s assets as well as the debt itself when the sale takes place.
This is a particularly useful tool available to you to recover a bad debt and expensive for the debtor. Where land and buildings are concerned they can be sold at a forced sale which means that although they should obtain market value. The debtor will not be able to expose them to the market themselves over a longer period of time to see if the market will pay a better price because they will have usually lost control of the assets.
A statutory demand is a formal demand for payment of a debt which sets out the basis for the demand, when the debt must be paid and the consequences of non-payment of the debt.
The debtor has 21 days after being served with the statutory demand to make payment of the debt referred to in it. Alternatively, the debtor can within 18 days of being served with the statutory demand apply to set it aside.
It should be deployed when the debt is not disputed. If however the debt is disputed, then you will need to obtain judgment from the Court first to dispose of the dispute.
An unsatisfied Statutory Demand can lead to a winding up petition being served. This is a serious position because a company cannot continue to trade normally through its Directors if the winding up petition leads to a winding up order and being placed into Compulsory Liquidation.
A winding-up petition is the final and most severe method for the debtor, available to you to recover a bad debt. However, you must be owed more than £750.
This will typically be part of the process following a statutory demand being ignored or unpaid. However, there is no requirement for you to serve a statutory demand on a company first if the debt that is due to you by a company is not disputed.
If a company owes you £750 or more, the creditor can petition the court for the company to be wound up and placed into compulsory liquidation. The petition will refer to a hearing date and then must be served on the company at its registered office. If the matter is to proceed to a hearing of the petiton at court, it will need to be advertised in London Gazette.
If the winding-up petition does not result in payment of your debt then subject to the court at the hearing of the winding-up petition being in agreement that a debt is due and as a result the debt is insolvent, you should obtain a Winding Up Order for the debtor to be placed into compulsory liquidation.
This is often considered a last resort by creditors. It is not intended as a debt collection process but a matter in the public interest if the company cannot pay its debts when then fall due ie. it is insolvent. The consequential compulsory liquidation that may arise is deemed to be an insolvency class action when creditors are pooled together and share in the recoveries, assuming there are sufficient funds available after the costs of liquidation have been discharged.
Winding Up Petitions are advertised in The Gazette as public notices. They are a serious matter. A company cannot go about its business normally if a winding up petition has been issued and advertised in particular. It can lead to the company’s bank accounts being frozen.
Crucially once a winding up petition has been issued any disposition of the company’s property is void without validation by the court by virtue of Section 127 of the Insolvency Act 1986. This presents the company with a practical difficulty in continuing to trade, without a Validation Order authorising certain of the company’s transactions to take place. The Insolvency Proceedings Practice Direction has within it a strict procedure which can be deployed to apply to court for a Validation Order so that trading might be able to continue in some way.
The Need for Quality Information To Recover A Bad Debt
The fourth thing you ought to consider in terms of how to recover a debt is how you avoid wasting time on blind alleys and focus on how you might recover the debt efficiently, effectively and expeditiously.
You need quality information so that you know who and what you are dealing with to assess the problem and make an informed decision as to the approach going forward.
The first thing to do is to find out just how well you know the party that owes you the money in the first place. Even if you have known them for a long time, then unless they are your best friend with whom you have shared your life, even then you might be in for some surprises. You might find that all that you thought you knew about someone was not correct and literally from day one.
It is therefore time for you to do your research and find out about this person or party properly. The more accurate information that you have at your disposal, the more you will be in a position to challenge and hopefully recover. If you find yourself dealing with a party who has been particularly dishonest and who has deceived you, then you might be in a position demonstrate fraud and other misconduct.
The purpose behind that is not to focus on some potential criminal proceedings; it is so that you can show the extent of some conceivable deception. Criminal proceedings might cause someone to have a criminal record but they are conceivably less likely to help you directly. They are more designed to help society as a whole in the public interest, than you and your debt.
Many people who are intent up on avoiding payment of debts can be accustomed to in effect getting away with it. They might be used to a number of other parties giving up the puruit of repayment. The important thing is not to give up because that exacerbates the problem, not just for you but for others and society potentially as well.
How to Assemble Quality Information
The fifth thing to consider about how to recover a debt is about assembling quality information. How do you assemble quality information? What is quality information?
Quality informatoin is objectively reliable information that can trusted. In other words it is not information based on your ‘understanding’ of matters even when accumulated over many years. Not only could your understanding, even over many years, be an accumulation of inaccurate information but it could be that your memory in any event lets you down and persuades you that certain facts are correct when in fact they are not.
To assemble qualify information you need to go back to the drawing board and start from scratch to begin with. You should assemble information about the party who owes you money from public sources of information.
To begin with you want to know more about the party that owes you money and whether or not it is likely that they will be in a position to repay you.
Portable wealth information is not the best form of information because a) it is not easily obtainable and b) the portability of such assets means they can be disposed of easily. Ideally you are after bricks and motar i.e. a house that someone owns that you can attach a debt to. Even better if you are concerned that someone might take the drastic action to escape you by moving far overseas for example only, then if you discover they are properly settled in this country, perhaps lacking inventives to uproot their life, then conceivably all the better.
Where can I Obtain Information?
The sixth thing to consider about how to a debt is where quality information can be obtained from. A good source of such information is Companies House. You can obtain information on people’s companies, historic addresses, indications of their date of birth and other individuals with whom they have or are involved through their companies.
Whilst Companies House may only currently provide service addresses, many people still use their domestic addresses as their service address. Further, old companies filing histories may reveal such relevant addresses looking at historic Annual Returns.
If you discover relevant addresses then you can use Land Registry to search them for a small fee to obtain property ownership information.
If you discover that the person you are interested in has a house that they own, you will be able to see if it has a mortgage on it and if they own it with someone else. You may even discover that other people are also hot in pursuit to recover their debts if they have already registered charges, such as charging orders over the property or what are known as unilateral notices to some claim over the property concerned.
If you are still struggling, then you can look to hire a tracing agent on a ‘no trace no fee basis’. An example of a company offering such a service would appear to be Tremark Associates, who appear to offer a no trace no fee type service.
Once you know of the address in someone’s name you can often go to Google to take a look at it from the outside through Google Maps. Just plug in the postcode and you might in many instances be as good as right outside.
You can of course also look into the value of the property by going to sites such as Zoopla. You may even be able to see inside the property to get a look at its condition if it has been available for sale.
The internet and social media provide further avenues for obtaining publicly recorded information about individuals. Look on Twitter, Facebook, LinkedIn Google and even TikTok to see what someone might have shared with the world at large to build a picture.
The internet has a wealth of other information. If you are aware of a website you may be able to find out who it is registerd to through Whois searching. This could give you clues about a valuable income stream that is generated by the party concerned.
How to Use the Information
The seventh thing to consider about how to recover a debt is using the qualify information that you have assembled to see if you can obtain the recovery you seek.
If a person has a valuable asset such as a house, then you may be able to obtain a judgment and place a charging order over the property to secure your debt. Subsequently you may be able to recover the debt by forcing the sale of the property.
The important point here is that you now have done your resarch on the party or parties that owe you the money. Hopefully by now you will have found out some useful information and you will not have needed to necessarily spend a penny with agents to do this work for you.
You can now armed with this information, instruct relevant professionals properly.
How do I Issue an Insolvency Claim
The final thing to consider about how to recover a debt is if there is an insolvency situation then you can take advice from our CEO Elliot Green who is a Licensed Insolvency Practitioner and Chartered Accountant. We will look at your situation free of charge to begin with to see if we can assist you and help you with your claim.
If there is no insolvency situation then you can look to pursue the unpaid debt and if necessary issue legal proceedings and serve them at the correct address, hopefully in the knowledge that you have the right person and that they are worth powder and shot.
Above there was reference to the self defeating tendency arising from the belief or sometimes even mistaken suggestion from others, that a debt might not be recoverable, leads many people to give up early in the debt recovery process. Instead of continuing in pursuit the delay and slow pace of recovery can disincentivise people from continuing in the process. That is precisely what some debtors rely upon to defeat the legitimate pursuit of the debt.
Hopefully however before you get to this stage the debt will by now have been paid. However, if not and if you are uncertain about any aspect of these processes then do not hesitate to contact us for a Free Initial Consultation on your particular circumstances. For a Free Initial Consultation Contact Us now.