Forget About It!
When NOT to Pursue a Claim.

Here are some situations where you definitely should not or cannot pursue a collection claim or where you should carefully consider whether trying to collect the debt makes good sense:

1. Bankrupcty: The debtor has filed for bankruptcy and the debt has been discharged. In this circumstance a creditor cannot legally pursue the debt.

2. Costs: The cost of collecting the debt including legal fees and out of pocket expenses (such as court filing fees and sheriff’s fees) is very likely to be higher than the amount you will recover.

3. Collectibility: The debt is likely to be uncollectible. Collecting from an individual, especially someone who is not employed and has few assets can be difficult if not impossible. Collecting from a business entity that is no longer doing business can also be difficult if not impossible. It is very important to at least try to judge the collectability before proceeding with a claim. Often, clients will retain me on a preliminary basis to assess the collectability of a debt.

4. Counterclaims: If your debtor is likely to file a counterclaim against you, regardless of the merits of the potential counterclaim, this can be expensive, especially where the creditor is obligated under its fee agreement with the attorney to pay for the defense of a counterclaim on an hourly basis.

5. Amount in controversy is small: Even a small claims action will require the expenditure of out of pocket costs, time and effort. There is always a potential for a counterclaim. And the claim may be uncollectible. In some situations, it is simply better to walk away where the risk is simply not worth the likely reward.

6. Statute of Limitations has run: Where the claim is barred by the statute of limitations and is likely to be subject to a motion to dismiss or motion for summary judgment on this basis.

7. Claims between friends/family members/romantic partners: Collecting money lent to an individual with whom the creditor has or had a personal or familial relationship is often very difficult because of the informality surrounding the underlying transaction and hence the difficulty in proving the claim. Rarely are both parties to the transaction represented by lawyers who assist them in drafting legally binding documents. The debtor often claims that the funds were tendered as a “gift” or that the debt was forgiven.