A Reliable Solution for Debt Collection in Colombia

The Rule of Law Index 2021 from the World Justice Project has ranked Colombia #86 out of 139 countries and jurisdictions in the world, as it pertains to civil justice. Within the region, it ranks #19 out of 32 countries, which is just above average. According to the Guide on Doing Business 2020 from the World Bank, Colombia ranks #177 out of 190 countries surveyed, regarding its indicator on enforcement of contracts. This indicator measures the time and cost for resolving a commercial dispute through a local first-instance court, and the quality of judicial processes index, evaluating whether each country has adopted a series of good practices that promote quality and efficiency in the court system. (Thus, the indicator does not account for an appeal process or petition for review through the “tutela” action, as well as execution, which would add significant time for a creditor to achieve its goal of enforcing its contract.) According to this indicator, in Colombia it takes 1288 days to enforce a contract (through first-instance), and litigation costs around 45.8% of the claim value. The time it takes to enforce a contract in Colombia should be compared to the average time it takes in the region (Latin America and Caribbean), which is 774.2 days. As such, the performance of Colombia courts is well below average.

Any strategy for litigation in Colombia for collecting debt or enforcing contracts should be analyzed and decided jointly with your local lawyer or law firm, who can better inform about current practices of local courts in different places across Colombia, as well as efficiency and effectiveness. Creditors should consider effectiveness and efficiency of such local courts in their debt collection efforts and especially, while negotiating and settling such claims.

First, you must keep in mind that collecting a commercial claim is different than collecting large volumes of consumer claims, which merits a different treatment. A commercial claim arises out of business-to-business (B2B) transactions. Creditors will usually have one or a few outstanding claims in the thousands of dollars against other companies, as opposed to having a multitude of small amount claims against individuals (consumers), which usually happens in consumer collection. Thus, the treatment of a commercial claim is much more complex and the approach by the collection firm is key for success. If you are partnering with a collection firm to handle your commercial claim in Colombia, you should make sure that the following qualities are met by the firm:

• Law Firm. Your claim should not be handled by unqualified individuals or firms who do not understand the legal environment in Colombia, including creditor liabilities out of debt collection efforts. Lawyers will usually provide the necessary leverage in tough negotiations, during debt collection.
• Debt Collection Lawyers. Your lawyer should be familiar and comfortable with debt collection. Debt collection requires the art and skills of persuasion, negotiation, and even sales, and your lawyer should command these traits and be willing to talk to the debtor on your behalf. You do not want a corporate lawyer hiding behind a desk. You want someone who will handle your collection claim enthusiastically and knock on your debtors’ doors right away.
• Litigation. Preferably, you should retain a law firm with a success in a litigation practice. A litigation lawyer will be able to realistically assess your collection claim for litigation and advise you properly about the strengths and weaknesses of your case, all important in determining your “reservation point” based on your BATNA (“Best Alternative to a Negotiated Agreement”) for negotiation during collection efforts. A litigation firm will also be ready to escalate your claim through the courts immediately, should those actions be required.
• No Win, No Fee. Your collection firm should offer to work on contingency fees (no win, no fee), which requires them to share the risk and cost of pursuing your collection claims. You need a true partner and not a lofty law firm that will charge you by the hour with the potential of spending thousands of dollars with no recovery in sight.
• Physical presence. Your collection firm must have a physical presence in Colombia and, specifically, in the place of the debtor. They should be able to immediately move fast, visit the debtor and knock on their door. This is key for confirming your debtor’s actual presence as well as his legal and financial situation, and to signal to the debtor that legal action is imminent. A collection firm making phone calls from far away will simply not convey a real threat to a debtor in Colombia, and their potential (favorable) reaction will be null.
• Ethical Conduct. Your collection firm must be mindful of the ethical and legal regulations on debt collection and provide services under a strict compliance policy and guidelines. This will include all legal regulations, including general liability principles of lenders and creditors for wrongful conduct.

HMH Legal provides debt collection and litigation services throughout Colombia, covering cover all major cities such as Barranquilla, Bogotá, Cali, Cartagena, Medellin, etc. Our services to secure transactions and mitigate risk, including due diligence investigations and credit reports in Colombia, are provided throughout Colombia through our main partners in Bogotá and Barranquilla.

Here’s how it works: When a client submits a claim for collection, our lawyers immediately review their claim to mitigate risk, and assess the situation of the debtor, to identify strengths and weaknesses and know what leverage we have in the negotiation. Then our lawyers then reach out to debtors throughout Colombia and knock on their doors for amicable but strong collection efforts. During collection, we target claims that merit legal action and advise clients accordingly. This “SMART” collection process allows us to bring results to our clients consistently.

Amicable debt collection (collection out-of-court) is offered based on a pure or total contingency fee, which is known as a “NO WIN, NO FEE” fee arrangement. That means that if we don’t collect money from your debtor, we will not charge you anything. Our contingency fee varies depending on the age and dollar amount of the outstanding claim that is placed for collection. 

It is simple. If you need help with debt collection you can simply submit your claim through our online form. For all other matters (or to discuss debt collection as well) you can speak with one of our lawyers about your case, through a free consultation. After our consultation, we will provide a quote, along with services or placement letter to move forward.

• Limitation period. Creditors (or lawyers and firms acting on their behalf) should always first check the limitation period applicable to the transaction to make sure that the claim is not about to expire, and that the creditor has enough time to negotiate with the debtor. However, if the claim is about to expire, the creditor should avoid wasting time and take immediate and appropriate actions to stop the limitation period, such as a formal demand or starting legal action.
• Support claim. Creditors should document the debt properly to justify a legal claim against the debtor (including any guarantors), which will help fully comply with debt collection regulations in Colombia and assess and determine how weak or strong such claim is in consideration of legal action.
• Reservation point. Creditors should NEVER go into a negotiation without knowing how much litigation will cost him, how long it will take, what are his chances of winning, and what are his chances of collecting from the debtor through legal means (seizure, attachment, garnishment, liens, etc.). He should also know the exact same information but on the side of the debtor, that is, how much litigation will cost the debtor, how hard it will be on him and his business, what does he stand to lose (with penalties, late interest, damages, court costs, etc.), what are his incentives to settle, etc. Based on all this information (which must be confirmed with an experienced litigation lawyer in Colombia), the creditor will be able to calculate his “reservation point”, that is, the lowest offer that the creditor can accept from a debtor, before choosing his “best alternative to a negotiated agreement” (“BATNA”), which will be litigation.
• Investigate debtor. Knowing the current legal and financial situation of the debtor in Colombia before engaging with him is crucial to avoid costly mistakes. You will never negotiate the same with a debtor that is in the brink of bankruptcy, than with a debtor that has all the money in the world. Likewise, a company that has a multitude of lawsuits represents higher risk, than a company that is not involved in any litigation. Economic factors in the country are also important. A downturn in the debtor’s industry can confirm his current struggles and excuses as legitimate, rather than his unwillingness to pay. Lockdown and restrictions from the government (such as those from Covid-19) can also give you the full story. All these things can and should be investigated and confirmed before engaging the debtor, to know how much deference or leniency you will give him during a negotiation.
• Legal document. In anticipation of a negotiation meeting with the debtor, the creditor must be ready with a strong legal agreement and guarantee that will finalize and close any settlement reached with the debtor, especially if there are some concessions made by the creditor. It is highly recommended that these documents are drafted by legal counsel in Colombia, especially if the debtor and his assets are located in Colombia and the chances that the agreement will be enforced in Colombia are high. Creditors want to make sure that a strong legal agreement, guarantee or security device (such as a promissory note or “pagaré”) is put in place to make sure the debtor has an incentive to perform on his part of the deal.
• Persuade, sell, negotiate. The last part is probably the most critical and should be based on sound strategy by an experienced individual in handling negotiations. An experience professional will know when to sell, when to negotiate and, most of all, how to persuade through available methods and tactics. A clear understanding of cultural differences, emotions involved (egos), tactical empathy, psychological reactance, and presenting the ideal character (ethos), are all key in being successful in the negotiation and persuading your debtor to pay.

Data Crédito is a company authorized by the Colombian government to gather and store the credit information of individuals and companies in Colombia. Data Crédito allows you to buy the credit report of a person or company in Colombia by requesting their authorization via email. You can directly request and buy these credit reports through their website at Data Crédito Empresas for reports on companies, or we (HMH Legal) can assist with such reports. For more information feel free to schedule a call and talk to our lawyers.

Yes. While foreign arbitral wards are subject to enforcement proceedings, Colombian courts will generally recognize and enforce foreign arbitral awards. Colombia is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the 1975 Panama Inter-American Convention on International Commercial Arbitration. In addition, Colombia enacted Law 1563 of 2012, also known as the “Arbitration Statute” (which was influenced by the 1985 UNCITRAL Model Law on International Commercial Arbitration, including its 2006 amendments), which has expedited and streamlined enforcement proceedings, to the point of excluding the formal exequatur procedure required for enforcement of foreign “judgments” (from “judicial” courts).

The Supreme Court of Justice in Colombia has generally recognized foreign arbitral awards under the Arbitration Statute, so arbitration is a safe option for foreign creditors looking to opt for arbitration as a dispute resolution method with their debtors in Colombia. In other words, it is safe to include an arbitration clause on contracts of sale or loan agreement with Colombian buyers or debtors, even if the seat of arbitration is in the place of the creditor, outside of Colombia.