Don't think the small claims process is over just because you filed a claim, went to trial and won a court judgment. You may need to take action and spend money to enforce the judgment. Sometimes it's difficult or even impossible to enforce the judgment.
After judgment is entered, the plaintiff becomes the creditor, the defendant becomes the judgment debtor. In a garnishment, the employer or the bank becomes the garnishee.
Usually, the person you sued will simply pay you after you win. If you don't receive payment, you must take legal steps to try to enforce your judgment.
A judgment is a money award ordered by a judge as part of a small claims case. The judgment doesn't provide for collection of the money owed but authorizes the "winner" to use legal means to enforce and collect the award from the debtor.
If the judgment is in your favor, it's the duty of the other party to pay immediately. If your judgment isn't paid, usually within 30 days, you can start trying to collect the judgment.
Debtor's Examination Hearing
At the time of judgment and either at the request of the winning party or on the judge's initiative, the judge orders the judgment debtor to participate in a debtor's examination hearing to determine ability to pay. The hearing, which may be held immediately after judgment or within 10 days, may be conducted by the judge, hearing officer, a person authorized to administer oaths or a court employee designated by the judge. The losing party will be required to provide the court with information about his assets and liabilities, which may give you information necessary to collect your judgment.
If the judge rules immediately after the trial, you may ask the judge to order a debtor's examination at that time. If you receive the judge's decision in the mail, you may file a written motion for a debtor's examination.
If the losing party doesn't make full payment, the winning party may request the court to issue a writ of garnishment to collect the judgment from earnings or bank accounts or a writ of execution to have property sold to satisfy the judgment.
Garnishment of Earnings
This is a collection tool that will only be successful if the defendant is employed. Filing garnishment papers results in the court requiring an employer to retain a certain portion of the defendant's earnings and pay them to you. If the employer fails to do so, judgment can be entered directly against the employer, so there is usually no problem getting an employer to follow the order of the court.
You can obtain the paperwork to begin the garnishment process from the Justice Court. Instructions are provided with the garnishment paperwork.
The law allows a judgment debtor to keep a certain amount of wages. The formula for determining how much money is taken out of each paycheck is whichever one of the following is less:
- The amount by which the after-tax wages exceed 30 times the minimum wage
- 25% of after-tax wages
Garnishment of Bank Accounts
The procedure for garnishing bank accounts is similar to garnishing wages. If the debtor has a bank account that contains more than $150, the bank will pay that money to you up to the amount you are owed minus $150, which the defendant gets to keep. This is a one time procedure and you get only what is in the account when the bank receives the paperwork.
Writ of Execution
The Writ of Execution is a much less complex procedure. There is one form and the rest is left to the state. The court authorizes a constable or sheriff to confiscate property from the debtor and auction it off to satisfy the judgment. However, there are limits on what kinds of property may be taken and how the constable may go about securing possession of the property.
Prior to beginning garnishment or execution proceedings you may want to notify the debtor. The debtor may decide to pay you right away, rather than risk losing possessions or having an employer upset by the hefty amount of garnishment paperwork.
Questions for Your Attorney
- Can an attorney help me collect a judgment?
- How can I locate a debtor?
- Will the clerk of circuit court help me to collect a judgment?
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