All of your hard work and determination paid off. The judge in the case you filed in a Minnesota conciliation court, or "small claims" court, decided that the defendant (the person you sued), owes you money or has some personal property that rightfully belongs to you. Congratulations, you won!
However, 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 orders him to do. Unfortunately, this doesn't happen in every case. Often, the defendant doesn't do anything at all. You have some options when this happens, however, such as:
- Getting a Writ of Execution
- Garnishing the defendant's wages
- Having a lien placed against the defendant's real property
You can try these collection efforts only after the judgment becomes final and enforceable, which generally is 20 days after the Notice of Judgment was mailed to you and to the defendant.
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 into the court records, the first thing you should do is talk to the defendant-debtor. See if he can pay you immediately, or try to arrange a payment schedule. Sometimes, the judgment will specify a payment plan or "installment payments" for the defendant. If he doesn't pay you voluntarily, or if he never makes an installment payment or stops making them, then there are a few ways that the court can help you collect on the judgment:
Writ of Execution
Also known as "executing judgment," using a Writ of Execution is when you take (or "levy") some of the defendant-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. Generally, you need to:
- Have the judgment from the conciliation court "transcribed" to the district court. At the same time, you should file an Affidavit of Identification of Judgment Debtor. The court clerk can help you with transcribing your judgment
- Ask the court clerk for a Writ of Execution
- Once you have the Writ, take it to the sheriff of the county where the defendant-debtor's property is located. The sheriff must deliver it to, or "serve it on," the defendant, 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 sheriff will either give the money to you (if he seized cash from the defendant) or sell the property and give you the sale proceeds
With a Writ of Execution, you can usually get to the defendant-debtor's personal property, like jewelry, cars and boats; and certain real estate, like vacation or renal properties. Similar to this Writ is an Order of Seizure, which you would use to get the specific personal property from the defendant that you sued him over. The clerk can help you with this if your judgment orders the defendant to turn over property and he refuses to do so.
Exempt property or money (assets that are protected from creditors' claims) that can't be reached through a Writ of Execution includes the debtor's homestead real estate (that is, his home), a burial plot, and a certain amount of household furnishings. The sheriff or court clerk should be able to give you a list of exempt property, or you can get it online.
There are fees for applying for this Writ, for having it served on the defendant by the sheriff and for having the sheriff actually seize and/or sell property. Be sure to ask the court clerk about these fees.
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 application for Writ of Garnishment from the court clerk. When you file it, you'll need to know the name and addresses of the defendant-debtor's employer and/or bank. Again, you're responsible for making sure that the Writ is served on the defendant, his employer, and his bank. When it's served:
- The employer or bank will let you and 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 arrange for it to be paid to you
- The employer will withhold part of the defendant-debtor's weekly pay, but usually no more than 25% of his weekly net pay, and arrange for it to be paid to you
Exempt money that can't be reached through the Writ 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 defendant-debtor from selling his real property or even refinancing it without having to pay you. When you have your judgment transcribed into the district court, you automatically get a lien against any real property that the defendant has within the county where the small claims case was decided. If the defendant-debtor has land in other counties, you need to have your judgment filed or "recorded" in the recorder's or public records office for the county where the property is located. The court clerk can help you get copies of your judgment and tell you about the fees for recording them.
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 or place a lien on his land. If you don't have this information, you can send the defendant-debtor a Financial Disclosure, which asks him to explain what property he has and where it's located, where he works, his income, etc. If the debtor doesn't complete and send it back to you, you may file a Request for Order for Disclosure. If it's granted, the defendant will be ordered to answer the questions within ten days. If that doesn't work, you may file an Affidavit in Support of Order to Show Cause. If it's granted, the defendant will be ordered to appear in court and explain why he didn't obey the Order for Disclosure. If defendant doesn't appear in court, the judge may issue a warrant for his arrest.
Satisfaction of Judgment
Once the defendant has paid you in full, you need to file a Satisfaction of Judgment form with the court clerk. 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?