When handling collections of debts, what would make my job a lot easier is if the debt itself was evidenced by writing. This could be in the form of an invoice, purchase order, promissory note, personal guaranty or contract. However, any written memorandum signed by the debtor will work. I have sued on handwritten notes more than once and have always been successful in obtaining judgments thereon. I have also sued successfully on checks evidencing payment on a portion of the debt. Therefore, my advice to everyone is obtain written evidence of the debtIn addition, the writing should include as many terms as possible. For example, a contract, purchase order or invoice should include the specific terms of payment as well as provisions for interest. My clients often want me to include a claim for interest. Right now, the legal rate of interest in Florida is roughly 4.75% per annum which is rather low. By specifying the interest rate to be applied in writing, you may obtain interest up to 18% legally per annum in Florida.
Finding an alter ego corporation to an individual judgment debtor can be a very effective collection tactic. Consider the situation where the debtor owns his or her own business and draws no salary and deposits no funds in his or her personal bank account. Obviously the debtor has access to income because he or she is surviving, buying food, maintaining a home, etc. From a collection standpoint, you could garnish the debtor's salary but the business will answer no salary is being paid and you will be arguing the truth of that in court for months with no relief for your client. The debtor's bank account will also be empty because all personal expenses are being paid directly from the business to protect his or her assets from you. So what can you do?
Pre-judgment writs of replevin allow a creditor to regain possession of any property wrongfully held by another. Florida Statutes §78.069(3) provides the procedure and requires that the creditor post a bond prior to having the writ issued to protect the debtor in the event the property is wrongfully taken. This statute is extremely useful because it allows the creditor to pick up the property through the sheriff without serving the debtor first with the complaint so the debtor has no time to conceal the property.
Executing on a judgment can be an effective way to collect. However, most people do not understand the process involved when using a writ of execution to attempt to take possession of real and/or personal property of a debtor. I get calls all the time from potential clients anxious to collect the debtors antiques or valuable artwork as well as inventory, computers and merchandise. The impression is that now that the creditor has a judgment, it's easy to just go pick up the goods.
Collection of a judgment, I often tell my clients, is the hard part of the litigation process. Obtaining a judgment against the debtor can often be rather easy to achieve in litigation, especially when a debtor fails to respond to the lawsuit. The real challenge for a creditor and its attorney is attempting to collect on that judgment. Unfortunately, rarely does a judgment debtor receive the judgment and immediately send payment. Instead, the creditor needs to be prepared to chase that debtor to obtain payment.
I often get asked if its possible to collect on a judgment against a dissolved Florida corporation when the same principal has opened up a new company. If the new company is similar to the previous company, a judgment creditor can attempt collection in Florida against the new company under the legal theory that the new company is a "mere continuation" of the judgment debtor.