Your hard work and determination finally paid off. You won the case you filed in a Louisiana small claims court! The judge or justice of the peace agreed with you and he ordered the defendant (the person you sued) to pay what he owes you or to return your personal property to you. You're to be congratulated.
However, just because you won doesn't necessarily mean you're going to get paid or get your property. If you're lucky, the defendant will voluntarily do what the judgment orders him to do. Unfortunately, this doesn't happen in every case. You have some options when this happens, however, such as:
- Getting a writ of execution against some of the defendant's real and personal property
- Garnishing the defendant's wages
- 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 clerk enters the judgment, the first thing you should do is talk to the defendant, now judgment debtor. See if she can pay you immediately, or try to arrange a payment schedule. If she 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 defendant-debtor's property or assets to pay what she owes, or to have your personal property taken from her and returned to you. You need to file an application for this writ with the clerk of the court where the small claims case was filed. You have to be able to specify what you want levied and where it's located. The court clerk can explain how it works, but generally:
- You have to arrange for the constable or sheriff for the area where the property is located to deliver the Writ of Execution to the defendant (and her bank, if you're trying to seize money in a bank account)
- Unless the defendant files a "claim of exemption" (meaning that the asset can't be taken because it's protected by law), the constable or deputy will sell the property and deliver the sale proceeds to the court. If money is seized, it will be given to the court as well. If your personal property is being recovered, the sheriff or constable will arrange for it to be retuned to you
- The court clerk will give you instructions on how to get the money
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
Exempt property or money that can't be reached through the Writ of Execution include the defendant-debtor's homestead real estate (her home), and money she receives from public assistance programs, such as worker's compensation, unemployment and Social Security benefits. The court clerk or sheriff should be able to give you a list of all exempt property.
You have to pay fees when you ask for a Writ of Execution and for having it delivered to (or "served on") the defendant and her bank. The court clerk can tell you the amount of these fees.
This is when you arrange for money to be taken directly out of the defendant-debtor's paycheck and paid to you. Again, this usually is a complicated process, however it generally works like this:
- You have to apply for a Writ of Garnishment; the court clerk can give you the necessary forms
- You have to make sure the Writ is delivered to the defendant and her employer, which again usually is done by the local constable or sheriff, but you may be able to send it by certified mail in some small claims courts
- The employer will withhold part of the defendant-debtor's weekly pay, but usually no more than 25% of her weekly net pay, and pay it to the court
- The court clerk will give you instructions on how to collect the money
There are fees for applying for the Writ and for having it served on the defendant and her employer. Ask the court clerk about these fees.
Lien on Real Property
This will prevent the defendant-debtor from selling her real property or even refinancing it without having to pay you. To make this work, you need to file or "record" a certified copy of the small claims judgment in the recorder's office of any parish where the defendant owns land. There are fees for the copy of the judgment and for recording it. The court clerk can explain these fees to you and help you with recording your lien.
It's your responsibility to get information about where the defendant works and where her 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 her land. If you don't know this information, you can ask the small claims court for a Judgment Debtor Examination. If the judge allows it, the defendant will be ordered to come to court and answer your questions, under oath, about her money and assets, such as what property she has and where it's located, and where she works.
The court clerk can give you the forms you need to request an Examination, as well as explain the fees involved with it.
Satisfaction of Judgment
Once the defendant-debtor has paid you in full, you should contact the court clerk immediately and file a "Satisfaction of Judgment" form. By doing so, you agree that the defendant has paid you and that she 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 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 her. What can I do?
- Is there anything I can do if a debtor sells her house before I can get my lien recorded and sells a lot of personal property before the sheriff has a chance to seize it?