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. The collection process can be time consuming and there is no guarantee that the debtor will pay you the amount owed.
After judgment is entered, the plaintiff becomes the judgment creditor and the defendant becomes the judgment debtor.
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 debtor makes payments to you directly, you should notify the court when payments are completed.
Enforcing a Judgment
If the losing party doesn't voluntarily pay or agree to pay the judgment awarded, the party winning the lawsuit will have to start collection procedures. If you haven't been paid the amount of your judgment plus costs within ten days, you can request that the court issue either a writ of garnishment or a writ of execution.
Writ of Garnishment
The writ of garnishment of wages will order an employer to take out a certain amount of the defendant's paycheck. The maximum is 25%. Sometimes a person's low income will prevent you from being able to garnish their wages or will allow you to receive only a small amount of money at a time. If this happens you may want to garnish the debtor's bank account.
The writ of garnishment is filed with the district court clerk in your area. Call the district clerk before you go to his or her office to see what you need to bring. You will need at least the debtor's place of employment, address and bank if you are garnishing the debtor's bank account. You will also need to bring the fee necessary to file and process the garnishment. These costs will be added to the amount that the debtor owes in the judgment. However, you are responsible for paying these costs until they can be collected from the debtor.
After the writ of garnishment is filed, the employer or the bank of the debtor has ten days in which to file and answer. Failure by the bank or employer to answer will result in the judge entering a judgment against the employer or bank for the full amount specified in the original judgment plus costs.
After filing, the creditor will receive a notice of when the money should come to the court. The creditor must go down to the clerk's office upon that date and sign a statement to show that the money was received. The clerk won't call the creditor when the money arrives. It is the creditor's responsibility to keep in touch with the clerk's office.
A writ of execution is an order telling the sheriff to take the property of the debtor and sell it at a public auction in order for you to get your money. You should only use the writ of execution if there is no other means of collecting your money because it is a very complicated process.
In order to get an execution against someone, you need to follow the steps below:
- Go to the district clerk where you filed your suit and indicate you wish to file a writ of execution.
- Fill out the form the clerk gives you, take it to the sheriff's process office and pay them the fee they require for delivery.
- Stay in touch with the sheriff's office in order to keep informed about what is happening with the writ. The sheriff's office won't call you.
- You must put up a bond with the court in case the item you execute against is not owned by the defendant. The bond will protect you and the sheriff's process office against being sued if the item sold belongs to someone else.
- If you get this far without serious problems, the sheriff will take possession of the property. If a car is involved, the sheriff will have it towed in and stored while the sale of the item is publicized. You must pay for storage fees, advertising costs and, if a car is involved, for towing charges, but you will be reimbursed for the costs from the proceeds of the sale.
Questions for Your Attorney
- Can an attorney help me collect a judgment?
- How can I locate a debtor?
- Will the clerk of court help me to collect a judgment?