Your hard work and determination finally paid off. You won the case you filed in the Massachusetts small claims court (or people's court)! The magistrate (or clerk-magistrate) entered a judgment in your favor, 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 what the magistrate ordered him to pay in the judgment. Unfortunately, this doesn't happen in every case. Often, the defendant tries to avoid paying all or part of the judgment. You have some options when this happens, however, such as:
- Getting a writ of execution
- Have lien placed against the defendant's real property
- Garnish the defendant's wages
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 you got a copy of the judgment, it probably included a "Notice of Hearing," which set the date for a payment hearing or payment review hearing. If the defendant-debtor hasn't paid you by the date specified in the judgment, he must show up at this hearing. Before the date of the hearing, he has to complete a Financial Statement and give you a copy of it. Here he gives details about his financial condition and assets.
At the hearing, the magistrate may set up a payment schedule that lets the debtor pay off the judgment over time. Sometimes, the magistrate may find that the defendant is "judgment proof" and can't afford to pay anything at all right now. The magistrate will then grant a "judgment extension," which is usually for one year. At the end of that time, you and the defendant must appear at another payment review hearing to see if the defendant is now able to pay you.
If a payment review hearing wasn't scheduled and the defendant-debtor hasn't paid you, you may ask the magistrate's office for a Notice to Show Cause," which orders the defendant to appear before the magistrate. A constable or a deputy sheriff has to deliver or "serve" the notice on the defendant, and you have to pay a fee for that service. The fee, however, will be added to what he already owes you.
If the defendant doesn't show up at a scheduled payment review hearing or after getting a Notice to Show Cause, and if you appear and sign a sworn statement that the defendant hasn't paid you, then you may ask the magistrate to issue a capias. This is a civil arrest warrant asking a constable or deputy sheriff to arrest the debtor and bring him to court. Again, you have to pay a fee for this, but it, too, is added to the amount of your judgment.
The clerk's office can tell you the amount of these fees and help you with the appropriate forms.
As drastic as some of the payment hearing mechanisms may sound, they don't always work. Sometimes a defendant-debtor ignores the court and refuses to pay the judgment. You still have some options, though, including:
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 magistrate for this writ and you have to be able to specify what you want levied and where it's located. The Financial Statement that the defendant filled out may contain some valuable information, such as bank names and account numbers. Once you've been granted a writ:
- You have to take it a constable or deputy sheriff who serves the area where the defendant lives or where the property is located, and provide information on where the property or assets can be found
- The constable or deputy must deliver it to the defendant. 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 garnished by law), the constable or 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
Exempt property or money that can't be reached through the writ include the debtor's homestead real estate and money he receives from public assistance programs, such as worker's compensation, unemployment and Social Security benefits.
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:
- Get a writ of execution from the court
- Complete an Application and Order for Wage Garnishment, which is available at the clerk-magistrate's office. This form tells the debtor's employer to withhold some of the debtor's wages, which can't be more than $125 per week, and pay it to you
- Once you get an Order for Wage Garnishment, you have to arrange for it to be delivered to the defendant's employer by a constable or deputy sheriff
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 take a certified copy of the small claims judgment to the land records office in the county where the land is located. Once you record the judgment, there is a lien on any property that the defendant owns in that county.
Satisfaction of Judgment
You're not required to do anything once the defendant-debtor has paid off the judgment. However, the debtor may ask you to sign a "Satisfaction of Judgment" form. By doing so, you agree that the defendant has paid you and that he no longer owes you anything. The defendant can file that paper with the clerk-magistrate's office, and it will become part of the record.
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.