Your hard work and determination paid off. The judge of a Missouri small claims court, or "peoples" court, as they're commonly known, agreed with you and decided that the defendant, the person you sued, owes you money. You're to be congratulated.
Before you start celebrating, though, you need to know that winning doesn't necessarily mean you're going to get paid. If you're lucky, the defendant will voluntarily pay you the amount stated 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
- Garnishing 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.
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. See if she can pay you immediately, or try to arrange a payment schedule. If the defendant doesn't pay you, there are some ways that the court can help you collect on the judgment.
Writ of Execution
Also known as "executing judgment," a Writ of Execution is used to take (or "levy") some of the debtor's property or assets to pay what he owes. You need to file an application for this writ, called a "Request for Execution, Garnishment, or Sequestration," and you have to be able to specify what you want levied and where it's located. Once the Writ has been granted, the process is usually complicated, but generally:
- You have to take it the sheriff of the county where the property is located and provide information on where the property or assets can be found
- The sheriff delivers it to (or "serves 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 deputy will sell the property and deposit the money with the small claims court. The court clerk will then pay you
With a Writ of Execution, you can usually get to the defendant-debtor's personal property, like jewelry, cars and boats; and certain real property, such as vacation or rental property. Exempt property that can't be reached through the Writ include the defendant-debtor's homestead real estate (that is, his house), and certain dollar amounts of things like household furnishings and clothes. The sheriff or court clerk should be able to give you a list of exempt property, or you can get it online.
Wage and Bank Account Garnishment
Wage and bank account garnishment 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 file a "Request for Execution, Garnishment, or Sequestration" and you 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 This usually is done by the local sheriff. When 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 instructions on how to collect the money
Exempt money that can't be reached through the Writ include money child support, alimony and money from public assistance programs, such as worker's compensation, unemployment and Social Security benefits.
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 send the defendant written questions about his property and employment, which he has to answer under oath. If he fails to do so, you can ask the court that he be held in contempt, which means the court could fine him and put him in jail until he answers the questions. The court clerk should be able to give you some assistance with this.
Satisfaction of Judgment
After the defendant has paid you in full, you need to file a Satisfaction of Judgment form with the circuit court clerk. By doing so, you agree that the defendant has paid you and that he no longer owes you anything. If you don't file this form after payment's been made, the defendant can ask that it be filed to protect him from further collection efforts.
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 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 most of his valuable personal property before I can have the sheriff seize and sell it?