Here's how to provide evidence in debt collection proceedings

A collection procedure can be initiated when a creditor fails to collect an outstanding debt by other means, such as through a reminder or summons. If a debtor fails to make payment, you can take legal action to still obtain the amount owed. A collection procedure offers the possibility of still recovering the debt through the courts. If necessary, the bailiff can then be called in to obtain a judgment to be executed.

Debt collection lawyer on evidence in debt collection proceedings

When collecting a claim, it is essential that the creditor be able to prove that the claim actually exists and that the debtor is obligated to pay. This evidence is necessary to convince the court of the legitimacy of the claim. In this blog debt collection lawyer Conner Canters out what steps should be followed in collecting a claim and what evidence is considered (in)sufficient to support the claim.

Payment reminder, reminder and summons

Before initiating collection proceedings, you would do well to induce the debtor to pay the outstanding debt by other means. There are several possibilities for this. First, you can simply send a payment reminder, informally pointing out the expiration of the payment term. This is often done without a legal threat. You can also choose to send an e-mail or an app. If payment is not forthcoming, you can send a reminder. This is firmer in tone and often includes a warning that legal action will follow if payment is not made within a certain period of time.

There is also the possibility of sending a summons. Legally speaking, this is the same as a demand for payment, but in common parlance a summons is perceived as somewhat firmer. The summons is also called the final demand. This is a formal, legal written request for payment, which explicitly states that if payment is not made, collection proceedings or other legal measures must be taken into account.

Default required for debt collection costs and interest to be due

The debtor is in default as soon as payment is not made after the debt becomes due. In some cases, it is necessary to send a notice of default before the debtor can default. This is usually in the form of a demand letter or summons, as discussed earlier, giving the debtor a reasonable period of time to still pay. Absence is needed so that interest and collection costs become due. If the debtor is a consumer, this must include a period of 14 days between the day of mailing and the day collection fees become due.

Sometimes, however, it is not necessary to send a notice of default for the debtor to be in default. This is the case, for example, when a deadline set for payment expires without the obligation (payment) being fulfilled. In that case, the default occurs by operation of law, without a notice of default being required.

If the debtor still fails to make payment after default has occurred, the creditor may initiate collection proceedings. This can be done by filing a proceedings on the merits to start, but it is also possible to have a summary proceedings tightening.

Lawyer presents evidence in debt collection proceedings in court

In debt collection proceedings, you must provide sufficient evidence to support the existence of your claim. This can be done, for example, by providing additional documents, such as proof of delivery, correspondence confirming the agreements made, witness statements or a signed agreement. A signed agreement is very strong evidence. However, you must then prove that you, the creditor, have fulfilled your obligations under that agreement. It is also important to realize that some documents are not considered sufficient evidence to support the existence of a claim.

Claim based solely on invoices?

An invoice is a written communication from a supplier to a customer stating the goods or services provided, along with the amount due. It happens that collection proceedings are initiated on the basis of only the invoices sent. Additional documents, such as an agreement or other evidence to support the arrangements made, are then not submitted. However, an invoice only proves that a certain amount of money has been charged, but not that the performance in return has been carried out, that it was carried out properly, that there was an order for it, et cetera. Thus, in fact, an invoice by itself does not prove much. Illustrative is the judgment of the District Court of North Netherlands of March 18, 2015 (ECLI:NL:RBNNE:2015:1500), which considered that the existence of an invoice, does not prove that an order was given.

Why can an invoice be insufficient for successful collection proceedings?

An invoice is a unilateral document. It therefore does not prove the existence of an agreement or understandings between the parties. An invoice, as the sole means of proof, is therefore often considered insufficient to substantiate the existence of a claim. Indeed, the debtor has the right to dispute the content of the unilaterally drafted invoice. It is then up to the creditor to prove by means of an agreement or other document that the debtor is actually obliged to pay the outstanding claim. It is therefore very important to clearly record the agreements made in order to avoid any problems of proof in debt collection proceedings.

Lawyer collection for overdue payments

Do you need help or advice on collecting unpaid debts? Or would you like our debt collection lawyers to guide you right from the out-of-court stage? Then please contact with us. We know how to collect your claim.