Collection of Debt
If your small to medium sized business has ever tried to recover a debt from a customer who is significantly behind and you have lost patience, it is time to consider hiring a lawyer. Apart from fraud, business disputes pertaining to breaches of agreement are not crimes punishable by jail time; instead, their resolution lays mainly in civil courts. My firm has experience in recovering debts that are past due through legal action in court. The firm’s focus is on getting the debtor to pay 100% of the amount owed, whether it be through filing a lawsuit against the offending party and thereafter entering to a legally binding settlement re-payment plan or by swiftly obtaining a Final Judgment and securing recovery through wage or bank account writ(s) of garnishment or other mechanisms available. The following causes of action are
Breach of Agreement
When a party fails to perform on any promise that is part of an agreement without a legal excuse, it is considered a breach. In order to state a claim for a breach of contract in Florida, a party must allege the presence of a contract, the breach of that contract, that it suffered damages as a result of the breach and that it performed its obligations under the contract or had a sufficient legal excuse not to do so. The burden is on the plaintiff to prove the foregoing elements by the greater weight of evidence. Only certain types of contracts need to be in writing. An action for breach of an oral contract must allege sufficient ultimate facts showing that the plaintiff is entitled to the relief he is seeking. Therefore, the plaintiff must allege facts that, if taken as true, show that parties mutually agreed to a certain and definite proposal and left no essential terms open. Florida law requires the breach in question be material as opposed to immaterial. That is, the defendant’s non-performance must go to the heart of the contract and it must be the sort that would release the injured party from further contractual duties. Conversely, a defendant who fails to perform on some trivial part of his contractual duty does commit a material breach.
Even where there is no express agreement or contractual obligations between the parties, a plaintiff can recover from a defendant where he confers a benefit on the defendant who appreciates the benefit where his acceptance and retention of the benefit given the circumstances would make it unfair for him or her to keep it without paying the value of it. Such non-contractual obligations are treated under the law as if they were a contract. Such a contract is actually a legal fiction adopted by our law to give a remedy where someone was unjustly enriched by the actions of another. The circumstances necessary to establish such claim logically show that the plaintiff was injured before the courts will step in and grant this type of equitable remedy. Claims for unjust enrichment are often brought where there is no express writing between the parties and a cause of action for unjust enrichment does not exist where the parties have a valid.
Another type of popular action that may be brought by a business against a defendant to recover a debt is referred to as an action for an account stated. Where there is an agreement between people who engaged in previous transactions together where the price of those transactions was fixed, and the defendant promised to pay, an action for account stated is ideal because it a creates a legal presumption that the debt is correct, and that the Defendant owes it. Therefore, it is important that a business maintain accurate record keeping. To state a claim for account stated, the Plaintiff must allege:
- The parties engaged in a previous transaction which created a financial liability &
- The Defendant agreed that the balance is due and correct &
- The Defendant promised (either expressly or implicitly) to pay the balance &
- The balance was not paid
An action for an open account differs from an action for an account stated because it deals with a situation where the debt is unsettled and not governed by a written agreement. A cause of action for open account is appropriate where either work or labor was performed or where goods were sold, but the parties dealings were not reduced to writing, and the only record of the transaction may be the account books of the business owner and/or his demand for payment. Therefore, an action for an open account is not appropriate where there is an express contract or other obligations between the parties that have been reduced to writing.
The elements necessary o state a cause of action of open account are as follows:
- the Plaintiffs provided a series of services to the Defendants, with respect to which an unsettled debt was generated &
- the unsettled debt was generated in a context were Plaintiffs expected additional transactions with Defendants &
- the unsettled debt remains unresolved
The Plaintiff should affix an itemized copy of the open account to the complaint, since merely alleging that the defendant owes a lump sum is legally insufficient. The attached itemization should set forth in as much detail as possible the items that form the basis of the claim.
If your business is considering hiring a law firm to assist it in recovering a debt, put a knowledgeable, aggressive, and tenacious Miami business lawyer on your side.
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