- Find Attorney
Debtor-creditor law governs situations where one party is unable to pay a monetary debt to another. There are three types of creditors. First are those who acquire a lien through statute, agreement between the parties, or judicial proceedings against a particular piece of property. This property (or proceeds from its sale) must be used to satisfy the debt to the lien-creditor before it can be used to satisfy debts to other creditors. Once a lien has been created state statutory law governs how the lien is executed against the debtor's property. The sale of property subject to a lien to satisfy the debt is also governed by state statutory law. The type of property that may be used to satisfy a debt is governed by state and federal legislation, such as the Consumer Credit Protection Act. Secondly, a creditor may have a priority interest. A priority arises through statutory law. If a creditor has a priority his debt must be paid ahead of other creditors when the debtor becomes insolvent. The third type of creditor is one who has neither a lien against the debtor's property or holds a statutory priority.
Non-bankruptcy debtor-creditor law is governed mainly by state statutory and common law. Harrassment, defamation, or other unfair practices in attempts at debt collection may be curbed by tort claims in state court. States also regulate debt collection through statute. Congress has enacted the Fair Debt Collection Practices Act to regulate some debt collectors.
Creditors use judicial and statutory processes to have debts satisfied. Attachment is a limited statutory remedy whereby a creditor has the property of a debtor seized to satisfy a debt. Garnishment allows a creditor to collect part of a debt (for example wages) to satisfy the obligation. Replevin allows a creditor to seize goods, such as a security interest, that he or she has a property interest in, to satisfy the debt. Receivership involves the appointing of a third party by a court to dispose of the debtor's property in order to satisfy the debt.
A debtor may attempt to fraudulently convey a piece of property to keep it out of the creditos' hands. State laws seek to prevent this type of property transfer. Many states have adopted the Uniform Fraudulent Conveyances Act or its successor, the Uniform Fraudulent Transfer Act.
Debt collection is a deliberate attempt by a business to collect an obligation that has become past due. In normal transactions between two businesses, an invoice is rendered and payment is due within 30 days—unless, by special arrangement, a more generous schedule of payments has been agreed upon. Retail customers usually pay cash at time of purchase or, common in medical practices, are billed for portions not covered by insurance; payment is due some reasonable time after billing, e.g., five days or a week. After these time periods have passed, the payment is past due. In normal accounting practice, overdue payables are classified as 30-, 60-, and 90-day past due, and the accounting department routinely sends out "past-due" notices. Once an account is more than 90 days overdue, it becomes problematical and requires special action. In effect the buyer is now using the seller's money without compensation.
Debt collection, in another sense, may be the main business of a small enterprise; it may have been formed to collect money owed to others for a percentage of the debt owed. The small business, in yet another sense, may be the subject of debt collection activity, either because the business has been careless in paying bills or because the owner refuses to pay for a cause: perhaps the product shipped was deficient, etc.
A business expends considerable resources contacting, courting, pleasing, and servicing its clientele. Under normal circumstances, the overwhelming majority of customers pay reasonably promptly so that the payment pattern will have the shape of a bell curve: a few prepay or pay early, the majority pay on time, a few persistently pay late. The very few who fall beyond this pattern may do so because of unusual circumstances. Real "deadbeats" are difficult initially to identify. For this reason most businesses, small or large, treat persistent late-payers with much more courtesy than they deserve. Collecting receivables and paying payables are inherently in conflict. In many business-to-business situations, the customer may have a policy of paying late in order to show a better return on assets to its parent: it will be energetic in collecting, a laggard in paying. Debt collection, for this reason, is a difficult area of management for any business. The business, after all, also benefits from early collections and late payments. But if it is too aggressive collecting outstanding obligations, it may damage its standing with a valued customer.
Whatever its size, a business should pursue collections using a consciously formulated policy with well-defined triggering milestones for actions and an intelligent review process to protect the company's overall posture. Even in a business where the owner is simultaneously chief administrator, salesperson, and accountant, the collection policy should be capable of being written down under a few bullets. Long before collection begins, the company, of course, should have done its homework and established the customer's credit-worthiness. Effective collection systems 1) emphasize and highlight payment conditions in proposals and contracts, 2) kick in promptly, 3) have built-in flexibility and management review, 4) follow a systematic sequence of escalation, 5) are characterized by consistency and persistence, 6) match debtor's behavior to seller's behavior rationally, and 7) work toward definite closure within a preset timeframe.
Where at all possible, the business should strive to highlight payment term in its proposals and contracts in such a manner that the buyer is aware of the seller's policies—and its emphasis on being paid promptly. Michelle Dunn, an expert and popular writer on the subject, for instance, advocates that businesses should strive for written payment agreements. Even if a business cannot prevail in getting a particular contract clause, trying to do so may be remembered and may be helpful later.
Experts in the field agree that acting promptly on overdue obligations is of primary importance. Michael Giusti, writing for New Orleans CityBusiness, gave this issue a memorable formulation: "Debt collectors tell clients [that] overdue bills are not like fine wine—they only worsen with age." Citing Dave Duggins of the Duggins Law Firm in New Orleans, Giusti points out that "after an overdue account becomes 1 year old, the chances of collecting have all but evaporated." In a well-designed system, every overdue account will receive attention on a predefined trigger date; the action taken, however, may be governmened by additional considerations.
A sensible collection policy will recognize up front that knowledge of the customer is all-important both in selling and collecting. Therefore collection activity should be organized to pool information about a late- or non-paying client to discover early what the situation "over there" may be like. Action, including the initial action, should have inputs from all those involved with the debtor. This process may uncover problems which, once fixed, will cause prompt payment and thus avoid unnecessary spinning of wheels.
Reviewing the problem in some detail and then, if indicated, working with the delinquent client may provide the business unexpected opportunities. The client may be going through a temporary problem in which the company can help, perhaps merely through patience. The contact involved in working with the client may create new bonds that, later, will benefit the company. Such effort may also yield partial payments as the customer shows his or her good faith. Flexibility is thus very useful, all things equal. If the situation is hopeless, time can be saved. A rigid policy is never indicated unless the debt is too small to merit the effort required to turn corporate cartwheels in its resolution.
As already indicated, most debtors will have received past-due billings before collection activity even begins, and even such billings, highlighting the amount of time a bill is overdue, have a built-in feature of escalation. Similarly, collection effort should proceed in stages that give the debtor a certain benefit of the doubt initially. These stages may involve letters, then calls, and finally visits or—given other circumstances—precisely the reverse of this sequence. Which style of escalation is best will be well-known to the company.
A mature and businesslike approach is, of course, understood. Large outstanding obligations, especially those that significantly affect the seller, produce emotional situations in which, in unguarded moments, the management is inclined to threaten the deadbeat. If an action is threatened, it should have been considered carefully in advance. And management should be committed actually to follow through. If such commitment is lacking, silence is better.
Throughout the collection process, the debtor should clearly understand, at every stage in the process, that the business intends to get paid in full and now. For this to be credible, the seller, of course, must promptly take whatever steps are necessary to deal with the legitimate problems of the debtor and then immediately press for payment. As Michelle Dunn puts it in the title of her most recent book, Become the Squeaky Wheel.
The business intent on collecting its debt must be disciplined and consistent enough to match its own behavior to that of the reluctant client. In many situations of unequal power (large debtor, small company) the business, for instance, will continue work on a contract (a study, a landscaping job) even though a partial payment is long overdue. In situations of this sort, the business must stop working until it has been paid. This is often very painful to do. Similarly, the debtor should be refused any additional product until the matter of payment is settled. The conflict of interest between buyer and seller is here obvious and visible. All buyers would like to get something for nothing. The deep habit of pleasing the customer must sometimes be checked.
Sometimes a debt cannot be collected short of a lawsuit. And in many cases, the amount may not be large enough to merit litigation. A good collection policy will anticipate such situations and describe, in advance, how closure will be handled. Writing off the debt or turning the account over to a collection agency may be the options; having the debt hanging around maybe a third—but holds little promise of return while simply being there as a reminder of failure.
Outside collection agencies or the services of an attorney are the usual venues for collecting the money without doing it in house. Key considerations in following either of these routes are the amount of the debt and its age. Collection agencies and attorneys generally take a percentage (usually one-third of the total amount) of the debt collected as payment for their services. Even with professional help, however, some debts will inevitably be impossible to collect due to bankruptcy, customers who move without notice ("skip"), or the high expense required to collect them. For more information on securing a professional collection agency, contact the Association of Credit and Collection Professionals, P.O. Box 390106, Minneapolis, MN 55439, (952) 926-6547 or http://www.acainternational.org/.
Whatever combination of collection methods a business eventually chooses, the owner needs to remain aware of the limitations that state and federal laws place on debt collection under the Fair Debt Collection and Practices Act—which governs collections from "natural persons," meaning individuals. For example, it is illegal to make continual phone calls, to use profane or threatening language, to threaten repossession when in fact the article cannot be repossessed, or to threaten to damage a customer's credit report or have their wages garnished. It is also illegal to discuss a customer's collection problem in public. In addition, businesses have to desist with collection efforts if the target declares bankruptcy. Given the thicket of legal issues that surround many aspects of collection, small business owners should consult an attorney before initiating aggressive approaches to collect on delinquent accounts.
Business analysts expect that in coming years, electronic bill presentment and payment (EBPP) will revolutionize debt collection for large and small businesses alike. In the mid-2000s, electronic bill payment is still under slow development, in part because concerns over Internet security and privacy abound. But most experts believe that electronic bill collection systems will eventually become dominant. According to some EBPP vendors, conversion to such systems could reduce many business's billing costs by 50 to 75 percent once electronic bill payment becomes the norm for companies and individual consumers.
EBPP methodologies are, however, already in use to bill customers. Some businesses post bills on their home page. Others outsource the billing process to a consolidator who maintains its own page for posting electronic billings. Yet others secure the services of vendors who use e-mail to send bills directly to your customers. This method is favored by many; it is characterized by immediacy and convenience for the customer absent in the former options.
SEE ALSO Credit Evaluation and Approval
Burtka, Allison Torres. "Man May Sue Over Billing Mistake That Damaged His Credit." Trial. August 2005.
Dunn, Michelle. Become the Squeaky Wheel. Never Dunn Publishing LLC, 1 June 2005.
Giusti, Michael. "Debt Collection Companies Advise Business Owners About Recovering Unpaid Accounts." New Orleans CityBusiness. 17 May 2004.
Hermann, Hans. "Analysis—Credit and Finance—Debt collection: too important to neglect." Computer Reseller News. 23 January 2006.
Lucas, Laurie A. and Alvin C. Harrell. "The Federal Fair Debt Collection Practices Act: 2004 review of appellate decisions." Business Lawyer. February 2005.
Palmeri, Christopher. "Debt Collection Puts On a Suit." Business Week. 14 November 2005.
Stern, Gary. "Digital Dunning." CFO, the Magazine for Senior Financial Executives. 15 April 2000.
"Taking Stock—An Ode to Debt." Accountancy Age. 30 June 2005.