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COLLECTION - CALIFORNIA

WHAT DO YOU DO when informal collection efforts have not succeeded?   Probably, it is time to take more aggressive action.  You have several choices how to proceed:

 As used in this article, “Debtor” means each person or entity that owes you money.

 1. Attorney File Lawsuit and Prosecute the Case:

 You may retain an attorney and file lawsuit in a Superior Court. The filing fee that the Court charges for filing such a lawsuit varies from $180.00 to $320.00.  The filing fee is graduated depending on how much money you seek to recover.  The amount of attorney fees charged and the method of payment will have to be agreed upon.

Once the lawsuit is filed, next, the defendant debtor must be served with the Summons and Complaint. The cost to hire a process server to do so, depending on how evasive the debtor is, will probably be $50.00 to $150.00.   

If you prevail in your lawsuit against the debtor, the judgment will include the amount the court determines you are owed, plus the filing fee paid, as well as the service of process costs and any other statutory costs.  But the judgment will NOT normally include your attorney’s fees incurred, with limited exceptions.  For example, if you have a written agreement with an attorney’s fees clause, you may be entitled to attorney’s fees.  Furthermore, is you prevail on a “book account,” you are entitled to statutorily prescribed attorney’s fees.

If the debtor chooses to defend the lawsuit, your attorney’s fees will be greater. If the debtor chooses not to defend the lawsuit, a default judgment may be taken against him, and your attorneys fees will be less than if the debtor defends the lawsuit.

Once a judgment is obtained against the debtor or debtors, then you will still have to seek to collect the money from the debtor, except that, with a judgment in place, you will have powerful post-judgment remedies available to you.  However, you still must pay your attorney to perform the work necessary to implement these remedies unless you choose to attempt to implement them yourself.

 

2. File a Small Claims Action:

Alternatively, you may file a small claims action in a Superior Court. The maximum amount you can recover (as of early 2007) is $7,500.00. In small claims court, you represent yourself. You present the evidence.  No attorney will be present in court with you. The filing fee is $75.00.

 If you prevail at Small Claims Court, you will obtain a judgment up to the maximum amount of $7,500.00 plus your filing fees and service of process fees.  The defendant debtor(s) has to right to appeal the decision of the small claims court, which would caused the entire matter will be heard a second time at the Superior Court level.  On cases where liability and damages are clear and undisputed, an appeal by the debtor is unlikely.

Once, you have obtained a judgment against the debtor, the Court will not collect your judgment for you.  But the court will issue the orders and other required documents (which you or an attorney prepare and file and serve on the defendant) to force the defendant debtor to pay you.

 

3. File a lawsuit in the Superior Court in “Pro Per” (without an attorney of record):

You can file a lawsuit in the superior court yourself. You can hire an attorney like me to “coach” you through the process (and prepare some of the documentation) which can save you money because you’ll be making the any court appearances by yourself rather than paying an attorney to do so.

 

4. Write off the Loss.

You can do nothing.  You can confer with your tax professional to determine what kind of a tax write-off you might be entitled to.

 

5. Bad Check Restitution Program (Orange County):

If you are an Orange County resident, you might qualify for the Orange County bad check program.  The maximum recovery is $2,500.00 total.  Many other counties in California have similar programs with varying amounts of recovery.

 

6. Contact the District Attorney’s Office:

If the debtor wrote a bad check, you may seek to have the district attorney prosecute debtor under Penal Code §470 or other sections for writing a bad check.  The Court may might, in such case, cause the debtor to pay restitution (i.e., pay 100% of the debt) in lieu of criminal prosecution or jail time.   For Orange County cases, see article One Easy, Free Way to Collect Bad Checks.

7. Contact Orange County Lawyer, Matthew Tozer at (949) 863-9445 or email him


If you are interested in having an attorney represent you in a collection matter, please feel free to contact my office at  the number or email address identified  above.

 

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