Costs
The clerk of court will charge a filing fee when a suit is filed. The filing fee depends on the amount that you are seeking, but for most of the cases I file, the filing fee either is $300 or $400. If the principal amount (interest, attorney’s fees, and costs are not included in this calculation) is $15,000 or less, then the case will be in county court, and the maximum filing fee there is $300. And if the principal amount is more than $15,000.00, then the case will be in circuit court, where the filing fee is $400.
A summons will need to be served along with your lawsuit. The summons tells the defendant that he/she/it has been sued and has twenty days to make a written response. The clerk of court will charge $10 to issue a summons.
Serving the lawsuit on your debtor
Before a defendant is required to respond to a lawsuit, the defendant will need to be served. Most counties allow service to be done by a process server, although sometimes you will need to file a motion and get an order appointing the process server beforehand. The process server’s fee will be about $50, but it could be more, depending on where the debtor lives and whether the server needs to try an additional address.
If you are suing a business entity (such as a corporation or a limited liability company), then the registered agent information usually is listed with the Florida Department of State, at myflorida.com. Sometimes that information is not current, or it may not be possible to find the registered agent. There are other ways to get a lawsuit served, however, such as by serving the company president.
If your debtor is a person (as opposed to a business entity), the simplest method of service is for the process server or deputy to hand the summons and complaint to your debtor. If your debtor is not at home, the lawsuit can be served—at the debtor’s home—on someone who is at least fifteen years old who lives with the debtor. (Section 48.081, Fla. Stat.) To serve your debtor away from his/her home, however, usually it will be necessary to serve him or her personally.
Once the debtor is served with the lawsuit, the debtor has twenty days to respond.
Motions
Unless your case is in small claims court, then a business entity must be represented by an attorney. If an unrepresented business entity files a response to a lawsuit, then I will file a motion to strike. In the motion to strike, I ask the court to strike the debtor’s response but also to allow twenty days for an attorney to file an appearance for the debtor.
Many times debtors do not respond to lawsuits, and if that is the case, then I will file a short motion asking the court clerk’s office to enter a default. Once the default is entered, I will file a motion for final judgment after default, along with an affidavit from the creditor. After the motion is docketed by the clerk’s office, I send the judge a proposed final judgment and ask that it be entered. Presuming the clerk has entered a default, usually the court will grant the final judgment without a hearing.
If your debtor fights the lawsuit, then getting the case to a conclusion will be a slower process (up to a year or more). It certainly may be possible to obtain a judgment more quickly than that, though, such as with a motion for summary judgment.
Mediation
Most judges will not allow a case to go to trial until the case has gone through mediation.
Mediation is a meeting between the parties, their attorneys (if attorneys are involved) and a mediator, and the point is to resolve the case by funding a mutually-agreeable compromise. The mediator usually, but not always, is an attorney. Nothing said at the mediation can be used later in court, to allow the parties to freely discuss the case.
Trial
At the trial, you will have the opportunity to present testimony and evidence to the judge (or to the jury, if it’s a trial by jury). The rules of evidence will need to be followed, meaning that certain things cannot be considered. For example, an invoice in and of itself will not be admissible, outside of an agreement from the other side. But with proper testimony to lay the foundation, and to establish the invoice as a proper business record, it can come into evidence.
Along the same lines, hearsay testimony generally is not admissible, although there are exceptions. An example of hearsay would be if you were to say that “the debtor told me that they received the products.” That most likely would be allowed, however, as an exception to the hearsay rule, because it’s an admission by the other side.
Arbitration
Some contracts say that instead of a lawsuit, a dispute would need to be arbitrated. Arbitration is similar to a trial before a judge, although the process of getting to a final hearing usually goes more quickly than a lawsuit. There can be discovery (such as depositions and the exchange of documents), but discovery will be limited. Arbitration means there will not be a jury trial.
The parties are allowed to select the arbitrator, and arbitrators often are attorneys or retired judges. Depending on what the contract’s arbitration clause says, the arbitration may need to be before an organization such as the American Arbitration Association. If so, that organization almost certainly will have its own rules and procedures about how the arbitration is conducted.
An arbitration provision can be waived. So, even if your contract says to arbitrate, if you were to file a lawsuit and the debtor didn’t raise arbitration (either as a defense or in a motion), the debtor probably has waived the right to arbitration.
