Your hard work and determination finally paid off. You won the case you filed in a Mississippi small claims court, or "people's court." The judge agreed with you and decided that someone owes you money or has some personal property that rightfully belongs to you. Congratulations!
However, just because you won doesn't necessarily mean you're work is through. If you're lucky, the person you sued will voluntarily pay you or return your property. Unfortunately, this doesn't happen all the time. You have some options when this happens, however, such as:
- Getting a writ of execution against some of his personal and real property
- Garnishing his wages
- Having a lien placed against his real property
- Getting a writ of replevin to have your personal property seized
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.
The court's judgment, that is, its decision on who won, will specify how much money the defendant-debtor has to pay you, or what property he has to turnover to you. 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. If you won money, see if he can pay you or immediately, or try to arrange a payment schedule. If the defendant 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 to ask the judge for this Writ and you have to be able to specify what you want levied and where it's located. Once you've been granted a writ:
- You have to take it to the constable or sheriff who serves the area where the defendant-debtor lives or where the property is located, and provide information on where the property or assets can be found
- The constable or sheriff must deliver it to (or "serve it on") 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 taken because it's protected by law), the constable or sheriff will sell the property and arrange for you to get the sales proceed
With a writ of execution, you can usually get to the defendant-debtor's:
- Money in bank accounts
- Personal property, like jewelry, art, cars, and boats
- Certain real property, like rental and vacation property
Exempt property and money that can't be reached through the Writ include the debtor's homestead real estate (that is, his home); a certain dollar amount of things like household furnishings and clothes; and money from public assistance programs, such as worker's compensation, unemployment, and Social Security benefits.
The clerk of the justice court where the small claims suit was filed can get you the forms you need to get this Writ. He can also tell you about the fees you need to pay for applying for it, having it served, and having the property sold.
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 a Writ of Garnishment, which you can get from the court clerk. When you file it, you'll need to know the name and addresses of the defendant-debtor's employer. Again, you're responsible for making sure that the Writ is served on the defendant and his employer by the local constable or sheriff. When it's served:
- The employer will let the court know if it has money belonging to the defendant that can be garnished, that is, money that's not "exempt" or protected from garnishment
- 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 instructions on how to collect the money
The court clerk can get you the forms you need for this Writ. He can also tell you about the fees you need to pay for applying for it and for having it served.
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 your judgment is entered into the court records, you automatically have a lien against his property that's located in the county where the small claims suit was decided. If the defendant-debtor has property in other counties, you need to file or "record" an Abstract of Judgment " with the clerk of the circuit court for the county where property is located. Once the abstract is record, you have a lien on any property that the defendant owns in that county. The clerks of the justice or circuit court can help you with this process and explain the fees involved.
Writ of Replevin
If the judge decides that the defendant has to return or turnover to you specific personal property, like furniture, equipment, or a vehicle, you may ask the judge for a Writ of Replevin. With this Writ, the sheriff or constable will be directed to seize the property listed in the judgment immediately and give it to you. The court clerk can explain how to request this Writ.
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. If you don't know this information, you can file a Motion for Examination of Judgment Debtor. If the judge grants it, the defendant-debtor will be ordered to appear in court and answer questions under oath about his property and assets.
The court clerk can give you the forms you need to request an Examination and can explain any fees involved with it.
Satisfaction of Judgment
When the defendant has paid you in full, or has paid you enough to satisfy you, you should 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, and it relieves the defendant-debtor from having to appear at any further Debtor Examinations. The defendant may ask the court to enter a Satisfaction if he has paid you and you haven't filed it.
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 experiencedattorney 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 him. What can I do?
- Is there anything I can do if a debtor sells most of his valuable personal property before the sheriff can seize it, or if he sells his house before I can get my lien recorded?