Your hard work and determination finally paid off. You won the case you filed in the Hawaii small claims court! The judge agreed with you, and the defendant's been ordered to pay you. You're to be congratulated.
However, just because you won doesn't necessarily mean you're going to get paid. If you're lucky, the defendant will voluntarily pay you the amount listed in the judgment. Unfortunately, this doesn't happen in every case. Often, the defendant tries to avoid payment all or part of the judgment. You have some options when this happens, however, such as:
- Getting a writ of execution
- Garnishing the defendant's wages
- Regaining possession of your personal property being held by the defendant (called replevin)
- Having a lien placed against the defendant's real property
The Names Have Changed
When the suit was filed in the small claims 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 judgment is entered into the court records, the first thing you should do is talk to the defendant. See if she can pay you immediately, or try to arrange a payment schedule. If the defendant doesn't pay you, there are a few ways that the court can help you collect on the judgment.
Writ of Execution
Also know as "executing judgment," this is when you take (or "levy") some of the debtor's property or assets to pay what he owes. You need to ask the judge for this writ and you have to be able to specify what you want levied and where it's located. Once the court grants the writ:
- You have to take it a deputy sheriff (or other officer authorized by the court) and provide information on where the property or assets can be found
- The deputy must deliver it to the defendant (or "serve" it on him), and then he may take the items listed in the writ
- Unless the defendant files a "claim of exemption" (meaning that the asset can't be taken because it's protected by law), the deputy will either give the money to you directly or sell the property and give you the sale proceeds
With a writ of execution, you can usually get to the debtor's:
- Money in bank accounts
- Personal property, like jewelry or art
- Motor vehicles
- Certain real estate, like investment or rental property
Exempt property or money that can't be reached through this writ includes the debtor's homestead real estate (his house or home) and money he receives from public assistance programs, such as worker's compensation, unemployment, and Social Security benefits.
The court clerk can get you the form you need to apply for this writ and can tell you the fee for filing it. Or, you can get the form online if you know which court the case was filed in. There's also a fee for having the writ delivered to the defendant. The clerk should be able to tell you the fee amount.
This is when you arrange for money to be taken directly out of the defendant's paycheck and paid to you. To do this, you have to:
- Complete an Affidavit of Judgment Creditor for Garnishment of Wages. You need to know the name and address of the debtor-defendant's employer
- Arrange for the debtor-defendant's employer to get a copy of the garnishment order, which the judge will issue if she grants your garnishment application
There are other forms to file, and there are fees for filing them. The court clerk can help you both. Once you're given a garnishment order, the defendant's employer will withhold a portion of his weekly wages, usually no more than 25%, and arrange for that money to paid to you.
Lien on Real Property
This will prevent the debtor from selling his real property or even refinancing it without having to pay you first. To make this work, you need to take a certified copy of the small claims judgment to the Hawaii Bureau of Conveyances. Once you record the judgment, you'll have a lien on any real property that the defendant owns in Hawaii.
This is when the defendant is holding your personal property, and the court orders her to return it to you. For example, if you filed suit because the defendant took shopping carts from your business, the court will order a deputy sheriff, or another official, to take them from the defendant and return them to you. You have to file an application for a "Writ of Replevin," which you can get from the clerk or online, and pay a fee.
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, garnishment or replevin. Sometimes, after trial, the judge may ask the defendant about his finances, and so you may be able to get some information at that time. If not, and if you don't otherwise have the information you need, you can file a "Motion for Examination of Judgment Debtor or Person Having Knowledge of Judgment Debtor." If this motion is granted, the defendant (or person with knowledge of the defendant's assets) will be ordered to appear in court and answer question about his assets. If he doesn't appear, the court may issue a "bench warrant," and the defendant could be arrested and brought to court.
Satisfaction of Judgment
Once you're paid, you need to file a "Satisfaction of Judgment" with the small claims court. You can get the form from the court clerk or online. By doing so, you agree that the defendant has paid you and that he no longer owes you anything.
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 experienced attorney 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?