The art of recovering unpaid debts

The collection of receivables is an art for your corporate clients.

Their working capital requirements (WCR) are not only met by telephone or written reminders from their accounting department.

It is well known that formal notice is already a path to litigation...

The latter results in an order for payment or a writ of summons on the merits as in summary proceedings before the commercial courts, which are not necessarily the only tools to ensure their WCR.

Need we remind you that an excellent decision often comes up against an enforcement problem?

This is why measures are taken beforehand.

The key to recovery is indeed there.

I. On measures upstream of any collection problem.

A - Information about the contracting party

The Kbis extract of its contracting party gives information on its capital, its directors, but a simple examination of the state of the liens will guide on its possible difficulties prior to those the creditor is facing today.

Mortgage registrations or pledges on the business have already been made...

URSSAF and the Treasury practice it every day. It is therefore better not to conclude a contract with this company.

B - Retention of title clause

Is your client a company that manufactures manufactured products? Does it sell or rent equipment?

Then you should examine whether its general terms and conditions of sale do indeed contain this clause, which allows it to remain the owner of its goods as long as their payment is not complete, in accordance with the provisions of article 1137 of the Civil Code.

This means that if a creditor is quicker than she is in trying to get them back, he will have to ensure their return because your client remains the perfect owner.

C - Guarantees from the legal representative of the contracting party

Obviously, it all depends on the type of clientele, because you can't always get the CEO to vouch for you.

That said, a young executive will concede it.

D - Payment terms on invoices

It is well known that on our territory, one pays one's bills for three months or more.

In any case, a simple mention of "cash payment" or "by return" or due date does not always appear on the wording of the invoices.

It is also possible to mention interest at the legal rate on the date the invoice is issued.

It is also advisable to consider which method of payment will be the most reliable and to make provision for this as soon as the contract is concluded: LCR, bank transfer, etc.

II. On the measures upstream of recovery by legal means.

A - Formal notice

The formal notice is a prerequisite for legal action.

It is subject to a certain number of formal requirements, one of which is that it must be sent by registered mail with acknowledgement of receipt.

The letter must expressly state that interests accrue from the time it is sent, in addition to the announcement of legal proceedings.

B - Attachments for conservatory purposes

On presentation of invoices, order forms and delivery notes, it is of course perfectly possible to see the bank accounts of the seized company; goods, as well as the titles of the partners, can also be seen, and this perfectly upstream of any dispute.

These measures are called protective measures because they safeguard the rights of the creditor.

C - Pledges of the business, mortgages on the building

You can of course advise your client to pledge the business of his co-contracting party, such as registering a mortgage on a property owned by one of the partners or even the manager...

This means that at the slightest examination of your co-contractor by a banking institution, the latter will consider that he is in proven difficulty... and his credit line will no longer be increased.

As you will have understood, this is the last step before taking the matter to court.

III. On judicial measures for the recovery of unpaid debts.

It is obvious that once you are well informed about the identity of the parties involved, the profile of the company and its financial standing, it is almost easy to take action against it.

A - Order for payment

An NSF cheque is an enforceable title so that a bailiff can seize the recalcitrant contracting party's bank account.

This being said, few people today transmit their bank references.

A court decision and therefore an enforceable title are therefore necessary.

Thus, orders for payment can be obtained by simply producing (i) your invoices, (ii) your reminders and (iii) the contractual framework set up by your client.

In most cases, the co-contractor will not be present at the hearing.

Of course, the injunction will be contested, but your co-contracting party knows today that it will not be present at the hearing.

B – Injonction de payer et assignation en référé

Une assignation en référé dit référé provision est également possible.

Cette procédure contradictoire ne supporte pas la moindre contestation sérieuse, car le juge des référés est le juge de l’évidence.

C’est ainsi que si le cocontractant rapporte la preuve que votre livraison n’était pas complète, il est évident que ce dernier ne vous a pas réglé et que vous devrez vous expliquer devant le juge du fond.

C – Assignation en redressement judiciaire

Tout dépend naturellement de la pression effective que le créancier souhaite exercer sur son cocontractant à la suite d’une mise en demeure, consultation de l’état des privilèges et inscriptions, il est possible de l’assigner en redressement judiciaire.

C’est dire en effet que l’on peut provoquer sa chute, mais que si ce dernier a encore les moyens de s’acquitter de sa dette, il le fera.

Comme on peut le constater l’arsenal préjudiciaire est important, mais encore faut-il tant en connaître l’existence que savoir l’utiliser !