Congratulations! Your hard work and determination finally paid off. You won the case you filed in the Indiana small claims court. The judge agreed with you, and the defendant's been ordered to pay you or to return your personal property.
However, just because you won doesn't necessarily mean that the case is over and your work is through. You still have to get paid or get your property back. If you're lucky, the defendant will voluntarily pay you the amount listed in the judgment or hand over your property. Unfortunately, this doesn't always happen, but you have some options, such as:
- Getting a writ of execution against the defendant's personal property
- Garnishing the defendant's wages or bank accounts
- 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.
In Indiana, when the judge decides the case, called the "judgment," the debtor may be ordered to:
- Pay you in full or to return your property immediately
- Pay you in installments over a period of time. Usually the court will specify the amount of each payment, how many payments will be made, and when they begin
The court may order the debtor to pay you or to pay the court clerk, who will in turn pay you. If the debtor doesn't do as he's ordered to do there are a few ways that the court can help you collect on the judgment.
In Indiana, before you can get to the defendant-debtor's property or assets, you need to file Proceedings Supplemental. Here, the debtor is ordered to appear in court and there's a hearing where he has to answer questions under oath about his ability to pay. The court will look at the debtor's financial condition and ask specific questions about where he works, where his bank accounts are located, and what types of personal property he owns and where it's located. Also, if you know the name and address of the defendant-debtor's employer, you can ask the court clerk to send a set of written questions to the employer (called "interrogatories"). The court can use the information given by the employer to determine if you can get some of the defendant's wages to pay your judgment.
After the hearing, the judge may order:
- The defendant-debtor to pay the judgment in full or in installments
- The defendant to give the court more information about his employment and income
- Garnishment of the defendant's earnings or bank accounts
- Execution against his personal property
If the defendant is ordered to appear in court and refuses to do so, you may ask the court to issue a body attachment. With this, the sheriff will arrest the defendant and he'll be held in jail until a new hearing can be held in the Proceedings Supplemental.
Writ of Execution
Also known 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 file an application for this writ, and the process itself can be complicated, but generally, once you've been granted a writ:
- It must be delivered to (or "served on") the defendant by a sheriff or constable who serves the area where the defendant lives or where the property is located
- Once it's served, the constable or sheriff may take the items listed in the writ
- Unless the defendant claims that the property or asset is "exempt" - meaning that the asset can't be taken because it's protected by law - the constable or sheriff will give you the money taken from a bank account or sell the property that's seized and pay 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
This writ can also be used if the defendant refuses to return your personal property as ordered in the judgment. The sheriff or constable will take the property from the defendant and arrange for it to be returned to you.
Exempt property or money that can't be reached through the Writ of Execution includes the debtor's homestead real estate (his home) and money he receives from public assistance programs, such as worker's compensation, unemployment and Social Security benefits.
The court clerk can give you the forms you need to request the writ, as well as a list of property that can't be attached. And he can tell you the current fees for requesting an order of attachment and having it served on the defendant. The fees you pay, however, will be added to the amount owed by the defendant.
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 file an application for garnishment and once it's granted, a sheriff or constable has to serve it on the defendant and his employer. The employer will then withhold some of the defendant-debtor's wages, usually no more than 25% of his net pay per week, and pay it 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. Once the court clerk enters your judgment into the court records, you automatically have a lien against any real property that the defendant owns in the county where the small claims court is located. If the defendant has property in other counties, you need to take a certified copy of your judgment and file it (or "record" it) with the county clerk for each county where the defendant owns property.
You have to pay a fee to the court clerk for each certified copy of your judgment, and you need to pay a filing fee whenever you record your judgment with a county clerk.
Release of Judgment
Once the defendant has paid the judgment in full (or has returned your property as ordered by the court), you have to file a "Release of Judgment" form with the clerk of the small claims court. You have to file this within 30 days after the defendant has paid you or returned your property.
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?