Your hard work and determination finally paid off. You won the case you filed in a Montana small claims court! The judge agreed with you and decided that the person you sued owes you money or has some personal property that rightfully belongs to you. You're to be congratulated for a job well done.
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 other person will follow the judge's decision voluntarily. Unfortunately, this doesn't happen in every case. You have some options, though, if it happens to you, such as:
- Getting a writ of execution against some of his personal property
- Garnishing his wages and bank accounts
- Having a lien placed against some of his 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 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 or a date when you can pick up the property you sued for. If that doesn't work and he never pays you or returns the property, there are a few 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 defendant-debtor's property or assets to pay what he owes. You need to fill out a form and file it with the clerk of the justice court where the small claims case was decided. The clerk can give you the forms you need. When completing the form, you'll have to specify what property you want levied or seized and where it's located. Then:
- You have to arrange for the writ to be delivered to or "served on" the defendant-debtor by the constable or 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
- After the constable or sheriff delivers it, he may take the items listed in the writ
- Unless the defendant files a "claim of exemption" (meaning that the property can't taken to pay your judgment because it's protected by law), the constable or sheriff will either give the money to you directly (if he seized cash from the debtor), or sell the property he seized and then give you the sale proceeds
With a writ of execution, you can usually get to the defendant-debtor's personal property, like cars, boats and equipment. Exempt property or money that can't be reached through the writ include his homestead real estate (that is, his home); money he receives from public assistance programs, such as worker's compensation, unemployment and Social Security benefits; and things like household furnishings and clothing, up to a set dollar amount. The court clerk, constable or sheriff may be able to give you a list of exempt property, or you can find it in Montana's code or laws.
You'd also use this writ if you sued the defendant to get certain personal property, such as equipment, furniture or a car, and the defendant-debtor refuses to turn over the property to you.
You have to pay a fee when you ask for this writ, and there are fees for having it served on the defendant-debtor and for having the constable or sheriff seize and sell any property. The clerk can explain these fees to you.
Wage and Bank Account Garnishment
Wage and bank account garnishment is used to take money directly out of the defendant's paycheck or bank account and have it paid to you. To do this, you follow the same basic rules for getting a writ of execution. When completing the necessary forms, which you can get from the court clerk, 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 by the constable or 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. You can only get a portion of his wages because he gets an exemption to protect some of his wages
- The court clerk will give instructions on how to collect the money
Again, there are fees involved with garnishing wages and bank accounts, so be sure to ask the clerk about them when you start the garnishment process.
Lien on Real Property
This will prevent the defendant-debtor from selling his real property or even refinancing it without having to pay you. As soon as your judgment is entered into the court records by the clerk, it becomes a lien on any real property the defendant-debtor owns in the county where the small claims case was decided. It also becomes a lien on any property he later buys in that county. If the defendant-debtor has property in another Montana county, you need to ask the clerk of the justice court for a "certified transcript" of the court's "docket" showing your judgment and file it with the clerk of the district court for the county where the property is located. You need to pay for the transcript and a fee for filing it in a district court. The court clerks can tell you about these fees.
It's your responsibility to get information about where the defendant-debtor works and where his property and bank accounts are located. Without it you can't get a writ of execution or place a lien on his property. If you don't know this information, you ask the small claims court for an order requiring the defendant-debtor to appear in court and answer questions about his property and assets. The court clerk can give you the forms you need to file to get this Order, as well as explain the fees involved with filing it or having it served on the defendant-debtor.
Satisfaction of Judgment
When the defendant-debtor has paid you or returned your property, he's "satisfied" the judgment. Once he's done that, you need to file a Satisfaction of Judgment form with the clerk of the small claims court that decided the case. If you don't do so, the defendant-debtor may ask the court to enter it, and you may have to pay the defendant money damages if your failure to file a Satisfaction caused him harm, such as hurting his credit rating.
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 people who are successful in small claims cases 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?