Your hard work and determination finally paid off. You won the case you filed in a New Mexico small claims or "magistrate" court. The magistrate agreed with you, and the person you sued (the "defendant") has to pay the money he owes you or has to turn over some personal property to you. You won!
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 defendant will voluntarily do what the court tells him to do. Unfortunately, this doesn't happen in every case, but you have some options if it happens to you, such as:
- Getting a Writ of Execution against some of his personal property, and perhaps against some of his real property
- Garnishing his wages and bank accounts
- Possibly 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.
After the magistrate 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 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 debtor's property or assets to pay what he owes. This is a multi-step process and it can be get complicated, but in general:
- You need to file an application for a Writ of Execution (the form is available from the court clerk), and you have to be able to specify what you want levied and where it's located
- You need to send the defendant-debtor a "Notice of Right to Claim Exemptions," which is available from the clerk, as well as a Claim of Exemption
- You have to arrange and pay for the Writ to be "served on" or delivered to defendant-debtor by the sheriff of the county where the defendant lives or where the property is located, and provide information on where the property or assets can be found
- After the sheriff delivers it to the defendant, 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 by creditors because it's protected by law), the sheriff will sell the property and arrange for you to get the sale proceeds
With a Writ of Execution, you can usually get to the defendant-debtor's personal property, like cars and jewelry, and certain real property, such as rental and vacation property. Exempt property that can't be reached through the Writ include the debtor's homestead real estate (that is, his house), and certain dollar amounts of things like household furnishings and clothes. The Claim of Exemption form lists most of the property that is exempt.
Be certain to check with the clerk of the court where the small claims case was decided to make sure you request this Writ properly.
Wage and Bank Account Garnishment
Garnishment is when you arrange for money to be taken directly out of the defendant's paycheck or bank account and paid to you. You can only get a Writ of Garnishment if the defendant-debtor doesn't have enough property that can be seized to pay off what he owes you.
Again, garnishment can be complicated, so check with the court clerk to make sure you're doing everything the right way. In general, though, you need to apply for the Writ, and when you do, you need to know the name and addresses of the defendant-debtor's employer and/or bank. As with a Writ of Execution, you're responsible for making sure that the Writ is served on the defendant, his employer, and his bank. 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 arrange for it to paid over to you
- The employer will withhold part of the defendant-debtor's weekly pay, but usually no more than 25% of his weekly net pay, and arrange for it to be paid to you
Exempt money that can't be reached through the Writ includes child support, alimony and money from public assistance programs, such as worker's compensation, unemployment and Social Security benefits.
Lien on Real Property
Recording a lien will prevent the debtor from selling his real property or even refinancing it without having to pay you. To make this work:
- If your small claims case was decided by a metropolitan or "metro" court, such as the Bernalillo County Metropolitan Court, you need to ask the clerk for a "transcript" or "abstract" of your judgment, and then you need to file it in the office of the county clerk for any county where the defendant-debtor owns real estate
- If the case was decided by a magistrate court, you need to have your judgment "docketed" in the district court of the county where the case was decided. You do this by filing a certified copy of your judgment with the district court clerk. Once that's done, you may file a transcript or abstract of judgment with the county clerk's office
Writ of Replevin
If the magistrate decides that the defendant has to return or turnover to you specific personal property, like furniture, equipment or a vehicle, you may ask for a Writ of Replevin. With this writ, the local sheriff will be directed to seize the property listed in the judgment immediately and turn it over to you. The clerk of the small claims court can explain how to request this writ and the fees involved with it.
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 have his property seized or wages garnished, or get a lien on his property. If you don't know this information, you have some options, including:
- Request an examination of the defendant-debtor, in which case the court clerk will issue a subpoena ordering him (or anyone else with knowledge about his property and assets) to appear in court and answer questions, under oath, about his property, bank accounts and employment
- Send a Notice of Statement to the defendant (or anyone else with knowledge about his property and assets), which will direct the recipient to appear at a certain time and place to give a statement about the defendant's property and assets
- Send the defendant a set of written questions, called "interrogatories," about his property and assets. If he refuses to answer them, he may be forced to come to court and answer them and may be held in "contempt of court," meaning he's violated a court order. Consequences for contempt include fines or even jail time
The court clerk can give you some forms and guidance for these processes and she can explain any fees involved.
Satisfaction of Judgment
Once the defendant has paid you or returned the property as ordered in the judgment, he's "satisfied" the judgment. You have to file a "Satisfaction of Judgment" form with the small claims court. By doing so, you agree that the defendant has paid you and that he no longer owes you anything.
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 experienced attorney 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 his house before I can get my lien recorded or sells his valuable personal property before the sheriff can seized and sell it?