Don't think the small claims process is over just because you filed a claim, went to trial and won a court judgment. You may need to take action and spend money to enforce the judgment. The collection process can be time consuming and there's no guarantee that the debtor will pay you the amount owed.
After judgment is entered, the plaintiff becomes the judgment creditor and the defendant becomes the judgment debtor. If you don't receive payment after winning a judgment, you must take legal steps to try to enforce your judgment. The court can't force the losing party to pay.
If the losing party doesn't voluntarily pay or agree to pay the judgment awarded, the party winning the lawsuit will have to start collection procedures. You'll have to complete and file more forms with the court, pay the required filing fees and appear in court for additional hearings. The additional filing fees are automatically added to the amount of your judgment. Use of an attorney is permitted in these collection procedures.
A judgment is a money award ordered by a judge as part of a small claims case. The judgment doesn't provide for collection of the money owed but authorizes the winner to use legal means to enforce and collect the award from the debtor.
The clerk of the court has forms available to assist the judgment creditor in collecting the judgment by garnishing wages and bank accounts or execution against the property of the judgment debtor. After the forms are completed, the person seeking enforcement of the judgment must make arrangements with the sheriff's office for service of these papers and to complete the garnishment or execution procedures.
If the judgment debtor makes payments to you directly, you should notify the court when payments are completed. Your court may allow the judgment debtor to make payments through the county court.
A garnishment is a proceeding whereby the judgment creditor seeks to obtain funds which are property of the judgment debtor but which are being held by a third party. A garnishment served upon the debtor's employer may result in the lesser of the following amount being paid into court and distributed to the creditor:
- 25% of the debtor's disposable income for the week
- 15% of the debtor's disposable earnings for the week if the debtor is a head of a family
- The amount by which the disposable income for a week exceeds 30 times the federal minimum hourly wage
A garnishment of a bank account results in the total amount of the account up to the amount of judgment and costs being paid into court for distribution to the creditor.
An execution is a court order directing the sheriff to seize the debtor's property. The creditor must determine exactly what property the debtor owns and describe it to the sheriff. Ownership of motor vehicles and certain other types of personal property can be determined at the county clerk's office. The county assessor and register of deeds office can be used to locate other personal property and real estate owned by the debtor.
Any property seized for sale to satisfy the judgment is taken subject to the rights of any liens, which are claims, against that property. The lienholder will be paid before the creditor.
County court judgments do not operate as a lien against real estate. If the debtor owns real estate, a certified copy of the county court judgment may be filed in the district court of the county in which the real estate is located. The judgment then becomes a lien on the judgment debtor's real estate.
After an execution is served and property seized, the sheriff will advertise a time and place for the sale of that property. The proceeds of the sale will be applied to the expenses of the sale first and then to the judgment.
You may want to talk with a lawyer before trying to enforce your judgment. A lawyer may prepare and file the necessary papers to collect your judgment. A wrongful execution or garnishment may result in a lawsuit being filed by the debtor or another offended party.
Questions for Your Attorney
- Can an attorney help me collect a judgment?
- How can I locate a debtor?
- Will the clerk of court help me to collect a judgment?