You have
been advised by your collection agency to allow them to forward you claim to an
attorney for litigation. You have also authorized the attorney to do so on your
behalf.
By now
you have analyzed the costs and time involved in proving up your case. 99% of the time
the case is either settled before going to trial or a default judgment is
entered on your
behalf against the debtor. However, let’s assume that the debtor decides to retain
counsel and contest the case.
In the
typical case in which goods or services are sold to the debtor, a
representative from the
client’s accounting or credit department familiar with the books and records
will be
required. It is also possible that a sales person or regional representative
may suffice as long
as they have knowledge of your record keeping system.
In
complex manufacturing cases, a knowledgeable manufacturer’s representative will be
necessary to appear on behalf of the client if the debtor raises issues
concerning warranties,
or additional contractual terms (verbal)…thereby necessitating the need for the
sales person to be available for rebuttal purposes.
A debtor
has a right under our system of jurisprudence, to have the creditor prove their case.
Whether that person is the credit manager or accounting personal, they must meet the
traditional burdens of establishing and proving their case before shifting the burden
to the debtor.
In order
to have a valid case, you must prove:
1. You
received an order from the debtor.
2. You
and the debtor agreed on a price for the merchandise or service to be provided.
3. You
delivered the merchandise or provided the service.
4. A
demand for payment was made.
5. No
payment has been received.
The
person who is actually to testify will only be able to state facts known from
personal knowledge
or upon review of the business records with the knowledge of what he is reviewing.
As long as a witness is credible you have now satisfied your burden of proof through
the use of a witness.
No comments:
Post a Comment
Tell Us What You Think!