What Do You Mean That the Creditor Will Not Sue!

Martin F. Goldman
Law Office of Martin F. Goldman, Los Angeles, CA

“Client will not sue…please close file.”  How many times do we see this letter and cringe because we feel that if the client will sue, a meaningful collection can be made.  However, because the client has chosen not to, all of the work and effort of the client, the agency and the lawyer has come to a financially meaningless end.

I present the bias of a commercial collection lawyer, who has spent over 25 years representing creditors through commercial agencies throughout the world.  By the time the “claim” has arrived at my office, the efforts of the creditor and a collection agency have been unsuccessful.  Creditors must understand that a lawyer is not a collection agency.  Agencies do a tremendous service to creditors.  They make a highly trained concentrated effort to motivate a debtor to pay a debt.  They use all of their weapons of organization, follow-through and persuasive powers to seek to impose upon a debtor something that the debtor has avoided doing, the motivation to pay the account.  Perhaps there really is a bona fide dispute!  Perhaps there is a real cash flow problem!  Perhaps there is nothing more than the debtor simply looking for a free ride!

Whatever the reason, good, bad, or indifferent, by the time the claim shows up in my office, the debtor has not paid the bill.  I like to assume that the claim is forwarded to a lawyer, because the lawyer brings to the table new and expanded tools to use in the collection process.  Clearly the most important of those tools is the ability to file a lawsuit.  Up to the moment of the filing of a lawsuit, the debtor has not had to make any real choice other than to make a payment or not.  Once a lawsuit is filed, the debtor is faced with a decision.  Should I pay money to retain a defense attorney or should I put that cost toward paying a bill?  Certainly, on occasion, a debtor needs more time…simply for time’s sake.  A debtor under those circumstances may still find it economically reasonable to hire a lawyer to delay the inevitable.  But, if the client never authorizes the suit, the debtor wins the game and avoids the dilemma of making this decision.

Once the litigation process begins, and assuming that the creditor is using the services of a skilled collection lawyer specialist, and has sent sufficient back-up paperwork, it really will not take much time or attention of the creditor.  You see, most cases never go to trial.  Obviously, a trial date is a lawyer’s best settlement tool.  We have all heard and experienced the “settlement made on the Courthouse steps.”  It is a fact that more than 90% of ALL lawsuits are settled before trial.

Now, getting back to the question that opened this tale…why did the client instruct us to close the file because they would not sue?  In my opinion, it is because the client, at the stage of making a decision on whether to sue or not, too often bases that decision upon whether they want to send a witness to trial.  Poor thinking!

There are several dates in the litigation process that create settlement opportunities.  The mere filing and service of a lawsuit is certainly an important one.  Why would a creditor give up on the collection process, which might result merely by the filing of a lawsuit for which the creditor incurs no greater expense than a filing and service of process fee?  They shouldn’t!  The setting of a trial date is another settlement motivation date.  Almost all parties, debtor and creditor alike, do not want to go to trial.  Everyone is strongly motivated to resolve the claim when a trial date is finally set.  However, a creditor loses the settlement opportunity by deciding not to sue.

If the case is filed, and no settlement is made, and the matter must proceed to trial, it is clearly BEST to have a witness from the creditor.  However, there are also many occasions that good experienced collection attorneys can proceed without a creditor’s witness…but that settlement opportunity of getting to the courthouse steps is lost when the creditor says they will not even begin the suit.

The long and the short of it is that unless the creditor’s decision is based upon the facts that their case is not bona fide, they should always choose to sue, if recommended by counsel.  Generally, only good things come from the commencement of the lawsuit and the creditor should not forego those good things, i.e., a collection of their delinquent account. After all, the creditor can always say, do not go to trial, which may be a much more informed and better choice than to not file the suit.

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