Your hard work and determination finally paid off. You won the case you filed in a Delaware justice of the peace court, or "small claims" court! The judge agreed with you and decided that someone has some property that rightfully belongs to you or owes you money. You did what you set out to do, and you're to be congratulated.
However, just because you won doesn't necessarily mean you're going to get your property or get paid. If you're lucky, the person you sued will follow the court's judgment voluntarily. Unfortunately, this doesn't happen in every case. If you don't get you money or property, you have some options, such as:
- Levying against his personal property
- Getting a writ of replevin to have specific property returned to you
- Garnishing his wages and bank accounts
- Placing a lien against his real property
The Names Have Changed
When the suit was filed in the justice of the peace court, you were called the "plaintiff," the person who filed the suit, and the person you sued was called the "defendant." Now that the case is over and you've won, you're now known as the judgment creditor and the defendant is called the judgment debtor.
After the judge decides the case and the clerk enters it into the court records, the first thing you should do is talk to the defendant-debtor. See if she can pay you or turn over the property immediately, or try to arrange a payment schedule or pick-up date. If she refuses to do so, there are a few ways that the court can help you collect on the judgment.
Also known as "executing judgment," this is when you "levy" against or take some of the defendant-debtor's property or assets to pay what he owes. This a multi-step process, and it usually gets a bit complicated, but in general:
- You need to file a form called Levy of Property with the clerk of the justice of the peace court where the case was decided
- The Levy needs to be served on or "delivered to" the defendant-debtor by the local constable
- The constable will examine the defendant-debtor's property and will make an appraisal to determine if there's enough property to take and sell to pay
- The constable will let you know if property has been seized, and if so, you must then file a request with the court clerk for a constable's sale
- The constable will sell the seized property and will deliver the sale proceeds to the court clerk, who in turn will pay it to you
With a Levy, you can't tell the constable what exact property you want seized. Rather, the constable will make that determination. Generally, though, the constable may take things like vehicles, boats and equipment. Some property is exempt, meaning that it can't be taken because it's protected by law. This includes things like a family Bible, school books, and a certain amount of business tools and equipment. The constable should be able to give you a list of exempt property.
You have to pay a fee when you file the Levy form, as well as for having the constable serve it and for selling any property. The court clerk or constable can tell you about these fees.
Wage and Bank Account Garnishment
This is when you have money taken directly out of the defendant-debtor's paycheck and paid to you, or have his property that's being held by someone else seized, like money in a bank account, and given to you. Again, there are several steps involved in this process, but it generally works like this:
- You need to file a form called Garnishment of Wages and/or Property with the clerk of the justice of the peace court where the case was decided
- Arrange for the Garnishment to be served on the defendant-debtor's employer and/or bank. This usually may be done by sending it to them by first-class mail
- The employer or bank will let the court know if they have money belonging to the defendant that can be garnished, that is, money that's not "exempt" or protected from garnishment
- If the bank has money that may be garnished, it will send it to the court
- The employer will withhold part of the defendant-debtor's weekly pay, but usually no more than 25% of his weekly net pay, and pay it to the court
- The court clerk will give instructions on how to collect the money
Exempt money that can't be reached through the Writ include money child support, alimony and money from public assistance programs, such as worker's compensation, unemployment and Social Security benefits.
Again, there are fees associated with Garnishment, so be certain to ask the court clerk for details about them.
Writ of Replevin
If you sued the defendant to get some specific personal property and he refuses to turn it over to you, you may ask the court for a Writ of Replevin. With this Writ, the constable will serve it on the defendant, seize the property listed in the Writ, and arrange for it to be delivered to you. The court clerk can give you the forms you need and can explain the fees and costs involved with this Writ.
If you sued the defendant in an eviction action and he refuses to vacate the leased property, you may ask the court for a Writ of Possession. The local constable will serve it on the defendant and will have the defendant removed from the property. The court clerk or constable can tell you about the fees associated with this Writ.
Lien on Real Property
This will prevent the debtor from selling his real property or even refinancing it without having to pay you. To make this work, you need to ask the clerk of the justice of the peace court where the case was decided for a "certified copy of the transcript of the docket entries." Once you have it, you need to file or "record" it in the Prothonotary's office of the superior court for any county where the defendant has land. The court clerk will charge a fee for the transcript, and the Prothonotary will charge a filing fee as well. They can explain these fees when you're ready to file a lien.
It's your responsibility to get information about where the defendant works and where his property and bank accounts are located. Without it you can't ask the court for an order of seizure or garnishment. If you don't know this information, you may file a "motion for proceedings in aid of execution." If the court grants it, the defendant-debtor will be ordered to answer questions, under oath, about what property or assets he owns and where they're located, as well as where he works and how much he's paid. If he refuses to answer the questions, you may ask the court that he be held in contempt of court, which means he may be fined or placed in jail. The court clerk can get you the forms you need for this motion and can explain any fees involved.
Satisfaction of Judgment
When the defendant has paid you or has returned the property you were awarded, he's "satisfied" the judgment. Once he's done that, you have 90 days to file a Satisfaction of Judgment with the justice of the peace court that decided the case. If you don't, the defendant may file a lawsuit against you and you may have to pay him up to one-half of the amount of money he paid you.
If all of this sounds difficult, time-consuming, and a bit expensive, that's because it is. Collecting on the judgment very well may be the hardest thing about your small claims case. That's why many successful small claims litigants ask an experiencedattorney for help in getting a judgment debtor to pay.
Questions for Your Attorney
- How much will you charge to help me collect on a judgment?
- Not long after the small claims court entered a judgment in my favor, the defendant moved and now I can't find him. What can I do?
- Is there anything I can do if a debtor sells his house before I can get my lien recorded?