special conditions in court proceedings

 

 

"Always bear in mind that your own resolution to succeed is more important than any other one thing." Abraham Lincoln
 
 

 

 

Anwaltskanzlei Feinen
D-50670 Köln
London Office
+44 203 3184513 tel
+44 203 3184574 fax

Skype call: debtcollection

 

E-mail - click here

 

Our e-mail contact:

kanzlei(ad)rechtanwalt-feinen.de
debtcollection(ad)gmx.net

 

 

 

 

 

 

 

 

 

 

 



Law Firm Feinen  Köln  Germany

Your partner in debt collection

News and information

 

 

Do I need a Debt Collection Attorney or shall I choose a specialised Law Firm like Yours?


It s not necessary but advantageous tho hire a specialised Law Firm as ours because a debt collection agency can assist you merely in out of court proceedings.

If court proceedings become necessary each debt collection agency will transfer the case to a Lawyer or Law Firm. It means to spend supplementary costs and a considerable lag of time.

Furthermore the services of a debt collection agency is regularly legally not to cover by the debtor!




Our new Safety Packages - Information counts!


The problem: Often creditors realise impending default firstly if their business partners do not pay the invoices after several reminders. Often it is too late to ensure payment and to trace the debtors.

Please check our offers here: Safety Packages -->>

 



Reasons why we need a Power of Attorney/PoA/Proxy:

 

The debtor and – in enforcement proceedings – the bailiff or the court requests to present a signed PoA of the client. Due to the new law provisions for bailiffs they have to request an original signed PoA before transfer of any collected monies.

 

A PoA is document, a certificate of authority, which proves that the client has mandated the attorney/lawyer to act on his behalf. The debtor or the bailiff must be secured that the attorney is in fact entitled to act on behalf of the client, to claim for the debt, to initiate court proceedings and – this is often most important – to receive payments of the debtor.
The debtor is interested that the attorney is authorized to claim for the debt or to receive payments as if the debtor would pay to the client directly (full power of attorney).

Regularly it is not a legal requirement to present a PoA. But if the debtor/bailiff/court requires to present a PoA we must – otherwise the debtor can ignore our letters and claims like nothing has happened.
Therefore we always recommend to sign and send back PoA by e-mail plus by mail (original) to avoid discussions with the debtor, bailiff or court about our mandate.

If it becomes necessary to terminate a contract it is legally indispensable to provide the debtor with a signed PoA.

The same is in bankruptcy proceedings: The administrator requires to present a PoA in each case.

 

The PoA is a document in relation to the debtor or court/bailiff, a proof of authorization, and not an agreement, contract or a document which changes conditions or establishes conditions between the client and attorney not agreed before.

 

The PoA has to inclose:

- Full name of the client

- Full name of the debtor

- the matter f.e. the invoice No. … or contract …

- the rights the attorney is entitled for (full power of attorney).

- Name and signature especially the full name of the legal representative of the client (company) like Manager, CEO or MD

 

Our draft is in German anf English language, both with identical content. It is to know for the client what he entitles the attorney for and it is for the debtor/bailiff/court to see what the the Attorney is entitled for. The client can read in English which rights he grants to the attorney and the debtor can read in German what the attorney is entitled for.

 

Therefore it is not sufficient that a different party than the client signes the PoA or to send only the second page of our draft. It must be the creditor, the contractual partner who issues the PoA and it must be obviously in which case the client authorizes the Attorney to act.

Find here the PoA, Proxy we need to represent your interests in insolvency proceedings:
- PoA only English version: here-->
- PoA German/English version: here-->
- PoA German/English (out-of-court) here-->
- PoA English (out-of-court) here-->
- PoA Draft to see what is to fill out: here-->
- Flyer bankruptcy proceedings, insolvency proceedings: here-->
- Flyer Our Services and Conditions: here-->


Please contact us for all details: E-mail - click here

 


New question of a client: The debtor did not react out of court anymore. The company seems to be in bad financial situation. The debt is 65,000.00 EUR. The legal position is easy and to the favour of the client. The client has to decide to invest in court proceedings. Our offer for fees is extremely obliging. Most of the fees to start court proceedings are for the court fees.
The client wrote:
The risk is that we pursue the debt and the company enters Liquidation (or German equivalent).  In this case, in the UK we would only be able to recover our fees from the debtor if they had assets.  Is this the same in Germany?  Would we recover our fees before any other creditor in the Liquidation because we started the liquidation process? 

I need to assess if it is worth incurring all the cost and what the possibility of getting:
(a) the fees repaid from the estate; and
(b) our debt repaid.

I understand that you cannot guarantee recovery of funds, but as our legal advisor,  could you advise if we should pursue the Company as you have suggested and assess the risk?

Thank you

Finance Department


Here our reply (excerpt):
Our thoughts are very easy:
It is the decision to waive the claim finally or to invest an amount which is remarkable smaller than the credit you granted the debtor.
Therefore you should pursue the claim particularly we found no pending bankruptcy proceedings (no guarantee). I agree that court proceedings could force the debtor to file for bankruptcy proceedings initially. I also agree that the financial standing of the debtor seems bad but for our point of view such a huge claim should not be discarded. T
he possibility of receiving any payment should not be omitted.

Attached you will find more explanations to bankruptcy proceedings
.

 



Pricing model for court proceedings (reduced court fees) - contact us for details!

If all efforts failed to collect the debt out of court court proceedings are the sole possibility to pursue the debt. Most of the debtors put the head in the sand, they simply have no money, are nearly insolvent or - on the other hand - they are fit in handling their creditors: They assume or hope that some day all efforts run off into sand or they take a chance if the client take them to court in fact. Regularly it makes less sense to send more than 3-4 letters especially to business people because permanent requests and threat with court action becomes non-credible some day if no consequence follows in fact. To stop all activities out of court is sometimes frustrating especially in cases the debtor runs business further on.

For court proceedings we already offer favourable conditions for our fees but the client has to take over the court fees related to the legal table in Germany.

Due to the fact that most of the clients are reluctant to incur costs and to take risks in court proceedings we would like to introduce the possibility to reduce court fees at around 80% off the regular court fees (e.g. claim of 2000 EUR: 36,50 EUR instead of 219,00 EUR/claim of 4000 EUR: 52,50 EUR instead of 315,00 EUR).

Such proceedings are prefered from a lot of companies in Germany. They can come very close to a writ of execution but have no further remarkable costs to bring court proceedings to an end if the debtor defends himself further on. So they have a "decision guidance" to decide to waive the claim or to "throw good money after bad".

Difference to ordinary court proceedings:
- Ordinary Court Proceedings: The client decides to take the debtor to court in any case, he intends to obtain a writ of execution (for enforcement or to put pressure on the debtor by threat of the writ of execution eg. to force and support an instalment agreement). He do not want playing with him anymore. Therefore court fees are to pay in total (!) and we offer flats for our services to make advances to the clients.

- Our Pricing model: The client is reluctant to go to court because of the investment of the court fees in total or the possible outcome of the law suit. But he wants to put more pressure on the debtor by let sending of an official court order to the debtor but he does not want to go through whole court proceedings maybe because of the time and efforts he has to invest or he assumes that the client is not solvent anymore. The client wants to test if the debtor really intends to defend himself and would take the risk of court proceedings (and fees) for him as well. The client wants to check if he can get a writ of execution without investment of considerable court and lawyer's fees. Therefore the client decides to go out of proceedings if the debtor objects in court proceedings. He has low costs and gets certainty now that without a complete and adversary court proceedings (court hearing, witnesses, reply to pleadings necessary etc) it is not possible to force the debtor to payment.

Benefit:
- The client can enter in court proceedings with small costs and without any risk
- The client can see if the debtor defends himself notwithstanding he received a court order in fact
- The client gets the most reliable fact whether his claim can be secured by writ of execution and enforcement on a very cheap way
- The client can exit proceedings as he likes

Cases suitable:
- no objections of the debtor against performance and invoicing of the client out of court
- contact by phone, fax or/and email is possible, all contact details of the debtor can be verified
- debtor is not out of business, no negative hints of insolvency
- a bank account is known
- we advise if a case is suitable



Success of debt collection is depending on ...

Often we are asked for a possible success of collection and prospects to enforce the debt.

Please note that success of collection is regularly not a question of the legal position or applicable law.

Success in debt collection rather is depending on all information about the debtor like complete and valid postal address, full name, Birthday, legal form (corporate company or individual), email accounts, web sites, TelNo. and Fax.No., bank details, assets like shares, real estate (...) of the debtor and the documentation the client provides us with.

Regularly we do not know if the debtor is solvent (anymore).Certainly we gather all information about the debtor in each case by our databases and research proceedings! We check the risk before starting court proceedings and we can get information if the debtor has filed for bankruptcy very quick. On the other hand it is to take in account that the client has concluded the contract. Therefore he was or is much closer to his former business partner as a debt collection agency or lawyer. Furthermore it is regularly not possible to get reliable information about the factual and definite real financial standing of the debtor.

But there are simple steps to reduce risks and to get an impression on the standing of the debtor:
- Is the phone of the debtor working, also fax and email? Is the Homepage still online?
- Which results can be found about the business by using a search engine like Google, Bing or Yahoo? Do we find different addresses, phone numbers, negative reviews, kinks to different business activities ...?
- Is a contact to the debtor possible? Is it possible to get information by employees, commercial agents or common business partners?


What do I have to do if I want you to collect our debt?

Here our simple answer: Please send us the invoices via email! We will contact you immediately.
(if possible no zip-, msg, eml- or rar-files, not more than 3MB per mail or by fax 0049-22116844619/30520048045 and inform us if you not receive a confirmation of receipt within 48 hours).


Statute of limitations/Limitation of action:

Please note that Your claims of Year 2014 could become time-barred on 31.12.2017!

Please note that a claim based on purchase is legally statute-barred after 3 years starting from conclusion of contract (order, confirmation of order).

After 3 years it is no longer possible to sue the debtor at court (end of the year).
Please note that a claim based on transport is legally statute-barred after 1 year. The regular limitation period for all claims of the buyer/purchaser for defects liability/implied warranty is 2 years.
If you claim for a different cause in law (f.e. loan) please contact us.


Hence, the regular limitation period is basically 3 years for all claims based on civil law (with lot of exceptions). Exceptions are stipulated in the law (please note: the regular limitation period for all claims of the buyer/purchaser for defects liability/implied warranty is 2 years).

The legal meaning and consequence of the Statute:

The Statute is not to check and judge by the court but if your debtor objects the Statute the court has to prove and judge it. This means that you can sue your debtor at court and you can win court proceedings but you have the risk that the debtor object the Statute and you would llose the case.

How to calculate:

The limitation period generally starts end of the year in which the claim legally comes into existence regularly by concluding a contract, not the date of delivery.

Example: if the claim came into existence on 30.07.2015 the limitation period starts on the 31.12.2015 and ends on the 31.12.2018. If the last day is not a working day the period defers to the following working day.

But there are further exemptions: f.e. in case of transport the limitation period starts at the date of delivery (not end of the year).


How to suspend or interrupt lapse of time?

The only fail-safe method to interrupt lapse of time is to initiate court proceedings on 31.12. each year at the latest! It is only necessary to file legal action to court by application.
The application or plaint must definitely be received by the court before that day. Otherwise your debtor can plead the statute of limitations and it is not possible anymore to force the debtor to payment.

The expiry of period of limitation shall be suspended in cases of negotiations between the parties about the claim or the facts which are the basis of the claim or initiation of court proceedings. The limitation period is extended by that time period. That is what we cannot assess without further information. Attention: often it is difficult to prove such "negotiations".

Please contact us if you need further information.



Our debt collection services in other European countries:

We offer our services in debt collection to the same conditions all over Europe as well! Therefore we collect outstanding debts also in Belgium, Netherlands, Switzerland, Austria ... free of charge in out of court proceedings. Please note that our service is provided in English language. In case the debtor does not react or definitely refuses to pay out of court we have to recommend to take court action by Lawyer's in the country of the debtor. For that purpose a Law Firm in the homeland of the debtor must be mandated and we can assist to communicate.

Please contact us if you need further information.


What to do if the debtor does not keep his promises to pay?
The most effective way to secure payments.

Generally we recommend to take the debtor to court to obtain an enforcable writ of execution/judgment even if he acknowledged the claim, made payment offers but did not keep his promises or is in delay of payment.

Please note: In cases the debtor agreed to pay, acknowledged the debt, confirmed that he has to pay, offered a payment plan a.s.o. it is legally not possible for him to contest his obligation to pay in court proceedings. Hence prospects to obtain a judgement to the favour of the client fast are very well.

By an enforcable writ of execution/judgment it is possible to take immediate steps to enforce the writ of execution/judgment by seizure/attachment of the bank accounts, wages, earnings, to order a bailiff or to force the debtor to affidavit of means (to compile a schedule of his income and assets) a.s.o.

Such a handling does not exclude an amicable payment plan but in contrary secure that the debtor keeps his obligations and the dates of payment.
Therefore we can put more pressure on the debtor and we do not lose time to obtain a court order or judgment.


To initiate court proceedings we can offer favorable, competitive terms and reasonable fixed-rates.



Our new offer for Lawyer's fees in court proceedings, invoicing:

because clients from abroad often are reluctant to incur costs and fees for court proceedings we have restructured our conditions related to undisputed claims up to 4000 EUR.

From our experience debtor's increasingly ignore reminders and dunning letters from the clients as well as from Lawyer's. The background often is to wait out if the creditor takes the matter serious and take the claim to court or waive the claim some day. Even in cases of a bad financial situation it mostly possible to find an instalment agreement anyway if the pressure of pending court proceedings forces the debtor to react.

The step to court is important because the debtor has to note that now court proceedings are pending and the creditor is definitely willing to pursue his claim and is able to enforce the claim in near future.

Court and Lawyer's fees in Germany regularly are related to a legal table. Related to court fees we have no possibility to change any conditions but related to our fees we can offer different conditions.

To initiate court proceedings we can offer favorable, competitive terms and reasonable fixed-rates.

In Germany we can initiate court proceedings by electronical court proceedings to achieve a court order to pay a debt. Because our workflow is well organized in data processing with all courts in Germany we can offer different conditions for our services as long as the debtor does not contest the claim. Even in this case we have to provide the court with a detailed statement of claim in written and we have to attend to a court hearing, so that processing of the file means considerable work for us we can not afford without being paid for our services.

Please contact us for details.

The advantage for the client is that he has to invest less money than usual and get notice shortly if the debtor contests and he has to invest more money and has the risk to lose the case or if it is possible to obtain an order to pay a debt in around 8-12 weeks. In cases the debtor raises objections or file an appeal to the court the client can decide to stop all activities or to pursue the claim at court further on.

The debtor is obliged to refund all court fees, if he is defeated in the lawsuit. Hence, all lawyer's and court fees and costs are basically recoverable from the debtor.


Our new Service in tracing a debtor:
Not only for court proceedings a valid postal address of your debtor is important: A company without postal address is probably out of business.
To check the postal address, telephone connections, pending bankruptcy proceedings, affidavit of means, we offer a flat of 80 Euros for companies and 3,90 EUR for individuals. Please use Paypal (contact) for fast processing or send us an email, we will instruct you how to proceed in detail.



Retrospective view of 2010 an outlook on 2011: increased economic development in Germany, less bankruptcy proceedings but no enhancement of the financial standing of debtors.
Shortly!

Recommendations in debt collection by view of German Lawyer's:
Because of the recent economic developement German business partners which were in financial difficulties in the past years probably won't come out of this situation in the next future.

They will try further on to delay payments by promises, false allegations about the bad financial situation, excuses and far-fetched legal objections like defective of goods a.s.o.. Your attempts to force the debtor to payment by phone calls and emails failed...

Based on our experience of 21 years we have to state that in the past it was mostly sufficient for us as Lawyer's to force a debtor to a fast reaction by letter and phone calls. Nowadays debtor's do not react anymore, they bury their heads in the sand, ignore the situation, sit out the situation, hope that never serious steps will follow ... . Moreover if they react the play further on, instalment payments are delayed, promises to pay next week ...
The only measure to get strength, seriousness and severity in proceedings is to take them to court from the beginning. This measure disclose to the debtor that the situation becomes serious and that it is possible that enforcment proceedings can follow immediately if the debtor does not keep his promises or instalment agreement.

Such a handling does not exclude an amicable payment plan but in contrary secure that the debtor keeps his obligations and the dates of payment.
By this we can put more pressure on the debtor and we do not lose time to obtain a court order or judgment.
In Germany it is possible to institute electronical proceedings (electronic data processing by the court) very fast and easy. The advantage is that (court) fees are less than in ordinary proceedings at court. Please call us if you require more information.

To initiate court proceedings we can offer favorable, competitive terms and reasonable fixed-rates.


The 10 most important problems to collect a debt:
1. Neither the full company name and legal entity nor the name of the legal representative of your business partner is known.

2. The exact postal address of your business partner is not known (P.O. Box is not sufficent)

3. You do not know all contact details of your business partner (fax, email, Homepage)

4. You don't have checked telephone connection, nor the Internet to find information about your business partner.
5. You do not know bank details of your business partner.
6. You do not have something in written concerning the business deal (order, confirmation of order, delivery notes, emails) or those information are deleted (emails)

7. Your invoice is not correct (Invoice-date, Invoice No., VAT-Id-No., kind of performance)
.... to be continued

 

 

 

 


 
 

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Law Firm Feinen, 50670 Köln, Germany, specialist in debt collection, claim management and international contract law
e-mail - click here
phone 0049-221-16844589, Fax: 0049 -221- 16844619

www.rechtsanwalt-feinen.de

www.forderungsservice.de
www.mediationsanwalt.de

Coaching: mindimproved - law, mediation,

 

Copyright: Michael Feinen 2000-2017
21.11.2017
21, November 201
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