Amicable debt collection: the rules to know

Debt collection is a regulated activity that consists of using dialogue to obtain payment from a debtor of the amount owed. What are the applicable regulations?

Definition of debt collection

When you owe money to a creditor, they can undertake to collect their debt (the money they loaned you), according to different procedures.

Collection procedures

• Forced recovery

The creditor can opt for the forced recovery of his debt by going to court.

• Amicable collection

The creditor can also attempt an amicable recovery without going through a judge, by establishing a constructive dialogue with the debtor. This has a double advantage, by avoiding going through justice, the creditor hopes to recover his money more quickly and the debtor avoids going through a lawsuit.

• Amicable debt collection on behalf of others

There are companies specializing in amicable debt collection. They offer the creditor to recover his debt on his behalf. This type of service is of particular interest to businesses, such as telecommunications operators, e-commerce companies, etc.

Because the activity consists of recovering money from a debtor in the name and on behalf of a creditor, the amicable collection of debts on behalf of others is a strictly regulated activity.

How can a debt be recovered amicably?

Note that any proposal for amicable debt collection begins with a letter of formal notice to pay the debtor who must mention the following points:

• The name and contact details of the amicable debt collection company;

• The name and contact details of the creditor (the person to whom you owe money);

• The amount of the sum that you owe to the creditor with a clear distinction between the different elements of the debt (amount due, interest);

• The indication that you must pay this sum and under what terms;

• An indication that the costs of debt recovery are the sole responsibility of the creditor unless these costs relate to an act that the law has prescribed for the creditor or if these costs were incurred by the creditor as a result of bad faith on the part of the debtor (for example, if a debtor has issued a bad check, the creditor may charge them for collection costs).

If you agree to settle your debt out of court, the debt collection company will give you a discharge that will show that you have paid your debt.

The particular case of judicial officers

Judicial officers are ministerial public officers responsible for enforcing court decisions. They are notably responsible for the judicial recovery of debts.

However, the law authorizes them to also offer amicable debt collection services on behalf of others.

This “double hat” can make the debtor doubt the legal nature of the recovery, especially since because of his status, the judicial officer is not subject to the formal rules that the letter of enforcement must take. remains to pay.

Advice

If a bailiff sends you a letter of formal notice to pay your debt, you must be able to know in what capacity he is involved, the amicable recovery or the judicial recovery of debts. If you have any doubts, do not hesitate to ask for details.

Concretely, at the request of the creditor, the judicial officer will send you a registered letter with acknowledgment of receipt inviting you to participate in this procedure. When the judicial officer receives the agreement of the creditor and that of the debtor, he then issues an enforceable title so that the creditor can proceed to the recovery of his debt, according to the terms and conditions fixed by mutual agreement with the debtor.

If the debtor refuses to pay his debt, even though he has accepted the procedure, a judicial officer may proceed with the forced recovery of the debt, without going through the judge (note: for ethical reasons, the judicial officer who will carry out the forced recovery cannot be the one who implemented the simplified procedure for amicable debt recovery).

Prohibition on charging debtor recovery costs

The creditor is prohibited from charging collection costs to the debtor, except in four cases:

• The costs relate to an act the performance of which is prescribed by law to the creditor (for example, the order to pay rent or an insurance premium);

• The costs were incurred as a result of bad faith on the part of the debtor (be careful, however, the creditor must apply to the enforcement judge and prove that the debtor acted in bad faith (for example, by proving that the latter never intended to pay) ;

• The costs were incurred to collect amounts that could not be collected due to a check issued without sufficient funds;