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. Sometimes it's difficult or even impossible to enforce the judgment.
After judgment is entered, the plaintiff becomes the creditor and the defendant becomes the judgment debtor.
Usually, the person you sued will simply pay you after you win. If you don't receive payment, you must take legal steps to try to enforce your judgment.
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.
If the judgment is in your favor, it is the duty of the other party to pay immediately. Unless the defendant agrees to voluntarily pay, you must collect or "execute" on the judgment in order to get your money. Execution of judgment is the process where the judgment debtor's property is taken and sold to pay the judgment.
Methods of Collection
If arrangements have been made for stay of execution (temporarily suspend collection efforts) based upon installment payments on the judgment, there is no forced collection as long as the payments are current. Otherwise, the creditor has a right to try to collect the judgment through these possible methods:
- Attach wages
- File a lien against property
- Use a "writ of execution" to have property sold
- Attach a bank account
You have six years to enforce the judgment, and you can renew the judgment if you need more time to collect.
Writ of Garnishment
If you are the creditor and judgment was received by default, meaning the defendant didn't show up for trial, or if your case was heard by the judge and she ruled in your favor, then wages, salaries, commissions, bonuses and property may be executed upon. All executions must be accompanied by a Writ of Garnishment with a payment to the employer, bank or entity that will be processing the writ.
If executing on a bank account, the bank account number, bank branch and address is needed. Be prepared with detailed information on the property to be seized. The court clerk will need the case number and, if possible, the Social Security number of the debtor.
Writ of Execution
If garnishment is unavailable, you may seek a different kind of court order called an attachment to obtain some of the defendant's property. To attach property, you must prepare a Writ of Execution and a Notice of Execution after Judgment. If possible, it is best to attach cash. To attach money in a bank account, you need to know the debtor's bank name, address and an account number if possible.
If the debtor owns a home, you can attach it. You'll need a legal description of the property, which you may obtain from the county assessor's office. The debtor can "homestead" (protect from collection) a primary residence up to a certain amount.
Another option is to record the judgment against the debtor's property. You may file the judgment with the county records office. The judgment is valid for six years and you can re-file. When the property is sold or foreclosed upon, you may receive your money.
You can attempt to attach the defendant's automobile, if you have the vehicle's description including vehicle identification number (VIN) and location, plus a printout listing the legal owner, and any outstanding liens. You can get these documents from the Department of Motor Vehicles.
Lack of Wages or Property to Attach
If you can't find wages or property to attach, you can file a motion with the court to allow you to conduct an examination of the judgment debtor. When you file the motion, the court will set a hearing. The debtor must be served (given) with notice of the motion and the hearing. At the hearing you may ask the debtor questions about his employment, bank accounts and property.
Satisfaction of Judgment
When the debtor satisfies (pays) the judgment, the creditor must file a "Satisfaction of Judgment" with the court, which is entered into court records. It shows that the judgment has been paid, and allows the judgment to be removed from the debtor's credit report.
Questions for Your Attorney
- Can an attorney help me collect a judgment?
- How can I locate a debtor?
- Will the clerk of circuit court help me to collect a judgment?
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