How to Sue a Debtor

Step-by-Step Guide

1. 1

   Step 1: Look for a contract.

   You need to prove to a judge that the debtor owes you money.
   
   In order to do that, you should produce a contract.
   
   Typically, contracts are written and will state how much the debtor borrowed from you.
   
   Look in your papers for a contract or a “promissory note” (which is the equivalent of a contract).
   
   It should be signed by the debtor.
   
   If you had an oral contract, then you will need to prove that the contract existed using other evidence.
   
   For example, if the debtor made regular payments before stopping, then these payments are some proof of the existence of a contract between you.
   
   You can also prove an oral contract with testimony.
   
   You can testify as to how much was lent and how much time the borrower had to pay you back.
   
   You can bolster your case with testimony from other witnesses who heard you make an oral contract.
2. 2

   Step 2: Gather proof of payment.

   You should figure out how much of the loan the debtor has paid off.
   
   With luck, you have kept detailed books and entered each payment, including the date and the amount paid.
   
   If you haven’t kept detailed records, then you should find proof of payments made.
   
   For example, get copies of cancelled checks or receipts for cash payments. , Before suing, you need to know how much you can sue for.
   
   Generally, you can sue for the following: the amount the debtor borrowed which is unpaid (this is the principal) any reasonable interest , After you calculate how much the debtor owes, you should send a demand letter to the debtor.
   
   You want to do this before filing your lawsuit because it gives the debtor one more chance to pay the debt.
   
   In your demand letter you should give the debtor a deadline for paying.
   
   Tell the debtor what methods of payment are acceptable (cash, personal check, etc.) and where those payments can be sent.
   
   Also make sure to threaten to sue if you are not paid in a timely manner.A sample demand letter is provided by the New York Courts System at https://www.nycourts.gov/courts/6jd/forms/Local/City/DemandLetter.fillable.pdf.
   
   Be sure to revise it to suit your situation.
   
   Send the letter to the debtor certified mail, return receipt requested.
   
   Hold onto the receipt; it is proof that the debtor received your letter.
   
   You should limit your collection efforts to just the demand letter.
   
   You don’t want the debtor to complain that you have been harassing them.
   
   One demand letter, with a clear threat to sue, should be sufficient. , You can’t sue the debtor just anywhere.
   
   Instead, you are limited in the counties where you can sue the debtor.
   
   Generally, you can sue:in the county where the debtor lives in the county where you signed the contract in the county where the debtor does business , You might be able to sue in small claims court, depending on how much you are suing for.
   
   States have different maximum amounts you can sue for in small claims.
   
   Small claims court has many benefits.
   
   For example, you don’t need a lawyer.
   
   The process has been streamlined so that you can handle the lawsuit yourself.
   
   Also, small claims courts tend to have more convenient hours of operation.One negative about small claims court is that you sometimes can’t have a jury.
   
   If you want a jury, then you might have to sue in regular civil court. , You start a lawsuit by filing a “complaint.” This document identifies the parties and explains the facts surrounding the lawsuit.
   
   You also state how much you are suing for.Most courts have “fill in the blank” complaint forms you can use.
   
   Stop into your court and ask the clerk if there is a form. , Enter the information using a typewriter or by printing neatly using black ink.
   
   Provide all information requested.
   
   Each court’s form will differ slightly, but each should ask for the same general information:your name and address the debtor’s name and address the amount owed your lawyer’s name, if you have one , Make several copies of your complaint.
   
   Take the original and all copies to the court clerk’s office.
   
   Ask to file the original.
   
   The court clerk should stamp all copies with the date.
   
   You will probably have to pay a filing fee.
   
   The fee will vary by court.
   
   If you can’t afford the fee, then ask the clerk for a fee waiver form and fill it out. , You have to give the debtor notice that you have filed the lawsuit.
   
   You can do this by sending a copy of your complaint to the debtor.
   
   You will also have to send a “summons,” which is a legal document you can get from the court clerk.
   
   Generally, you can serve notice on the debtor in the following ways:
   Have someone deliver the complaint and summons.
   
   This person should be at least 18 years old and not a party to the lawsuit.
   
   Hire a private process server to make hand delivery.
   
   You can find process servers in the phone book or on the Internet.
   
   They generally charge $45-75 per service.
   
   Pay the sheriff or constable to make service.
   
   In many counties, the sheriff can make service for a small fee.Mail the complaint and summons.
   
   You will probably have to use certified mail, return receipt requested., Whoever makes service typically has to fill out a Proof of Service form or Affidavit of Service.
   
   You can get this form from the court clerk.After the server makes service, he or she fills out the form and returns it to you.
   
   You then must file it with the court.
   
   Keep a copy for your records in case any questions arise later. , You can hire a lawyer to represent you at any time.
   
   However, many people cannot afford a lawyer’s full services.
   
   Nevertheless, you should think about hiring a lawyer just to represent you at trial, especially if a lot of money is at stake.
   
   Most states now allow lawyers to provide “limited scope representation” (also called “unbundled legal services”).
   
   Under this arrangement, you hire the lawyer to do discrete tasks.
   
   For example, you could hire someone to handle the trial for you while you do all of the pre-trial work, such as filing your complaint.If you are interested in hiring a lawyer, then you can get a referral for a debt collection attorney from your state or local bar association.
   
   To find contact information, you should search the Internet for “attorney referral” and then your city or state. , If you chose to have a jury, then the first thing you will do is pick the jury.
   
   Jury selection begins when the judge calls a panel of prospective jurors to the front of the courtroom.
   
   They then sit in the jury box and the judge asks them questions.
   
   Usually the judge asks basic personal questions (job, hobbies, etc.) and then asks if there is any reason they can’t be fair.
   
   You will then be able to ask the judge to dismiss prospective jurors.
   
   For example, if a juror knows you or the debtor, then you could have the juror dismissed “for cause.” You can have any prospective juror dismissed for cause if they can’t be fair.
   
   You also might have a limited number of “peremptory challenges.” With these, you can dismiss a prospective juror without giving a reason or even asking the judge’s permission.
   
   The only limitation on peremptory challenges is that you can’t use them in a way that discriminates against jurors on the basis of race, gender, or ethnicity.If neither you nor the debtor ask to have a juror dismissed, then that person is seated on the jury. , After the judge swears in the jury, you and the debtor each get to make an opening statement.
   
   You will go first.
   
   The purpose of the statement is to give the jury a sneak peek of what evidence you will present.
   
   Be sure not to argue or offer opinions during the opening statement.Instead, you simply want to let the jury know what the evidence will show.
   
   For example, you could say, “As the evidence will show, the defendant agreed to borrow $5,000 and to pay it back in monthly installments from January 2015 to May
   2015.” , You might ask witnesses to testify.
   
   For example, if you formed an oral contract with a handshake, then a witness could testify as to what she heard.
   
   When you question your witnesses, you cannot ask leading questions.
   
   A leading question is any question that suggests its answer.
   
   It usually can be answered with a “yes” or “no.”For example, “You were at my house on June 12, 2015, correct?” is a leading question.
   
   Instead of asking leading questions, you should ask open-ended questions.
   
   For example, you could ask a series of open-ended questions to find out where the witness was and what she observed: “Where were you on June 12, 2015?” “Who else was there?” “Did you hear anything?” “What did you hear?” , You might testify as well.
   
   If you have a lawyer, he or she can ask you questions.
   
   If you don’t have a lawyer, then you will probably just deliver your testimony in the form of a speech.
   
   The judge might also ask you questions.
   
   To be an effective witness, remember the following tips:
   Dress professionally.
   
   The judge and jurors are sizing you up from the moment they first lay eyes on you.
   
   Both men and women should wear suits, if they have one.
   
   If not, then see Dress for a Court Hearing for tips on appropriate attire.
   
   Listen closely to the questions.
   
   If you don’t understand a question, ask for clarification.
   
   Answer only the question asked.
   
   Don’t volunteer anything, and don’t guess.
   
   If you don’t know the answer, say, “I don’t know.” Always tell the truth. , The debtor might present witnesses as well.
   
   After the debtor’s lawyer questions them, you will have a chance to cross-examine them.
   
   The purpose of cross-examination is to undermine the witness’s believability.
   
   For example, you can show contradictions in the testimony.
   
   If the debtor testifies that you had no oral contract, then ask why he made several payments to you, all in the same amount.
   
   For more tips, see Question Witnesses when Representing Yourself. , Your closing argument is your chance to actually argue your case.
   
   Be sure to mention specific pieces of evidence and explain how they support your case.
   
   For example, you can show the jury the contract.
   
   You could say, “And you saw this contract.
   
   Did you remember that the defendant agreed that it was his signature on the last page? So he agreed to pay back this $2,000, except he didn’t.
   
   And even though he claimed he had paid it all off, he never introduced any evidence.
   
   No cancelled checks.
   
   No receipts.
   
   Nothing.” , After each side makes a closing argument, the judge will read the jurors their instructions.
   
   They then retire for deliberations.
   
   If you don’t have a jury, then the judge will probably deliver the verdict from the bench.
   
   If your case was particularly complicated, then the judge might issue a written ruling at a later date.
   
   However, most rulings should be made promptly.
   
   In many state courts, the jury doesn’t need to be unanimous.
   
   Instead, you can win the lawsuit if three-fourths of the jurors agree with you.
3. 3

   Step 3: Calculate how much is owed.

4. 4

   Step 4: Send the debtor a demand letter.

5. 5

   Step 5: Find the correct county to sue in.

6. 6

   Step 6: Think about using small claims court.

7. 7

   Step 7: Get a form complaint.

8. 8

   Step 8: Complete the form.

9. 9

   Step 9: File the form.

10. 10

    Step 10: Serve notice on the debtor.

11. 11

    Step 11: File your Proof of Service form.

12. 12

    Step 12: Hire a lawyer.

13. 13

    Step 13: Pick a jury.

14. 14

    Step 14: Deliver an opening statement.

15. 15

    Step 15: Present witnesses.

16. 16

    Step 16: Testify on your behalf.

17. 17

    Step 17: Cross-examine the debtor’s witnesses.

18. 18

    Step 18: Make a closing argument.

19. 19

    Step 19: Wait for the verdict.

Detailed Guide

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