Collection without dunning - how is that possible?
Consumers might be surprised to receive a letter from a debt collection service provider without having first received a reminder from the original business partner. Many customers wonder: Collection without dunning - is that even lawful?
The answer is: Yes! A collection order without a dunning letter for the creditor is possible under certain conditions.
An unpaid and overdue demand of the creditor forms the only necessary precondition for commissioning a collection company. This can be based on the delivery of goods or a service contract. If payment is not made by the contractually agreed payment date or by the payment deadline specified in the calendar, the debtor is in default of payment. In this case, the company can hand over the due debt to a service provider - for example, commission a debt collection service - with the aim of realising the settlement of the outstanding amount in a timely manner.
1. Default with dunning
Collection agencies only become active when the default in payment has occurred. If no fixed payment deadline has been set or contractually agreed, the creditor can put his debtor in default with a reminder. In this case, default occurs if the debtor also allows the deadline set in the reminder to expire without paying. It is important that the content of the reminder is an unambiguous request by the creditor to the debtor to fulfil his payment obligation. Some companies send several reminders before the receivables management is handed over. However, there is no legal obligation to send several reminders.
Usually, a debt collection order is only issued when the debtor has not fulfilled his payment obligation despite reminders and has not responded to the letters sent by his creditor.
2. Default without dunning
One can be in default of payment without a reminder if the invoice amount has not been paid by the fixed or contractually agreed date - or at the latest within 30 days after receipt of an invoice. The latter only applies to consumers if these consequences were specifically pointed out in the invoice. This means that if payment is not made, the debtor is in default immediately after the expiry of this period - this does not require a separate reminder.
Examples: Default without dunning
Contractually agreed payment date
When buying a car, the seller and the buyer agree on a payment date in the contract. If the purchase price is not paid by this date, the buyer is directly in default of payment. ➨ § 286 (2) No. 1 German Civil Code (BGB)
Payment deadline determined according to the calendar
On an invoice, for example, 15 February of that year is stated as the payment deadline. If the invoice amount is not paid by this date, the debtor is in default of payment as of 16 February. ➨ § 286 (2) No. 1 German Civil Code (BGB)
After 30 days from receipt of the invoice
If there is no specific payment term on the invoice, there is usually the following note if the customer is a consumer: "Default occurs if the payment obligation is not met within 30 days after the due date and receipt of the invoice". ➨ § 286 (3) German Civil Code (BGB)
Failed direct debit - agreement not honoured
If an agreed collection by SEPA direct debit cannot be debited, default occurs immediately. It is irrelevant whether the account was not covered or the account holder deliberately objected to the direct debit. ➨ § 286 (2) No. 4 German Civil Code (BGB)
If costs are incurred due to the delay in payment, such as reminder costs or interest on arrears, the debtor must pay them. This is referred to as damage caused by default.
Within this framework, all financial disadvantages incurred by the creditor due to the debtor's delay in payment must be reimbursed by the debtor. This also includes the costs for hiring a debt collection service provider or a lawyer.
What should you do in a case of collection without a dunning letter?
Letters from debt collection agencies should never be ignored. It is always better to tackle the problem and resolve it directly. Even if there may have been an overlap between the payment and the transfer to the collection agency.
If the claim is still open, it is advisable to pay the service provider directly as soon as possible or at least give feedback, if the claim cannot be settled on time by the set deadline.