Congratulations! Your hard work and determination paid off. You won the case you filed in a Kentucky small claims court when the judge agreed with you and ordered the defendant (the person you sued) to pay what he owes you or to turn over the personal property that rightfully belongs to you.
Unfortunately, it may not yet be time to relax. Just because you won doesn't necessarily mean you're going to get paid or get your property back. If you're lucky, the defendant will voluntarily do what the judge ordered him to do, but this doesn't happen in every case. It's not uncommon for a defendant to ignore the court's judgment. You have some options when this happens, however, such as:
- Getting a writ of execution against the defendant's real and personal property
- Garnishing the defendant's wages and 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.
When the judge makes a decision in the case (called a "judgment'), it will specify exactly how much the judgment debtor owes you (or what property he has to return to you) and how long he has to do it. If he doesn't pay you or "satisfy" the judgment within 10 days after the judgment was entered into the court records, you should contact him. See if he can pay you immediately, or try to arrange a payment schedule. If he doesn't pay you, there are a few ways that the court can help you collect on the judgment.
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 get complete a special form from the clerk of the circuit court for the county where the small claims case was decided. The form is called an "Execution Form," and you have to be able to specify what you want levied and where it's located. You need to file this form with the clerk. After doing so:
- You have to take it to the sheriff of the county where the defendant's property or assets are located
- The sheriff must deliver it (or "serve it") to the judgment debtor. Then he may take the items listed in the Execution Form
- Unless the judgment debtor files a "claim of exemption¿ (meaning that the asset can't be taken because it's protected by law), the sheriff will sell the property and deliver the sale proceeds to the circuit court. The court will then pay you
Through execution you can usually get to the defendant-debtor's personal property, like cars, boats and jewelry; and real property, like vacation and rental property. In Kentucky, you can't seize real property unless the defendant doesn¿t have enough personal property to pay you in full.
Exempt property that can't be reached through execution includes the defendant-debtor's homestead real estate (that is, his house), up to a certain dollar amount; and a certain dollar amount of things like jewelry, clothing and equipment. The court clerk or sheriff should be able to give you a list of types of exempt property.
You have to pay a fee when you file the Execution Form, as well as a fee to have it served on the defendant by the sheriff. The clerk or sheriff can tell you the current fee amounts.
Wage and Bank Account Garnishment
This is when you arrange for money to be taken directly out of the defendant's paycheck or bank account and paid to you. To do this, you have to get an "Affidavit for Garnishment" from the court clerk. You'll need to know the name and addresses of the defendant-debtor's employer and/or bank. After you then file the form with the clerk, you'll get an "Order of Garnishment." You have to make sure that this Order is served on the defendant, his employer, and his bank. You can send it by certified mail or pay the sheriff to deliver it. Once it's served:
- 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 you instructions on how to collect the money
Exempt money that can't be reached through an Order of Garnishment includes child support, alimony, and money from public assistance programs, such as worker's compensation, unemployment and Social Security benefits.
Lien on Real Property
This will prevent the debtor from selling his real property without having to pay you. To make this work, you need to file a "Notice of Judgment Lien" with the County Clerk for any county where the defendant owns property. You also need to give the defendant-debtor a copy of the Notice (you can mail it or deliver it to him personally). Ask the clerk about getting the forms you need to file a lien and about the fees charged for filing it.
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, and you can't get a lien against his land. If you don't know this information, you can send the defendant a set of written questions, called interrogatories, about what property he owns and where it's located, where his bank accounts are and where he's employed. The defendant must answer these questions under oath and within 30 days. If he doesn't, you may ask the court to order him to answer the questions.
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-debtor 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?