Your hard work and determination finally paid off. You won the case you filed in a North Carolina small claims or "magistrate" court. The magistrate agreed with you: Someone owes you money or has some property that rightfully belongs to you. You won, and congratulations are in order!
However, just because you won doesn't necessarily mean you're going to get your property back or get the money you're owed. If you're lucky, the person you sued will voluntarily follow the magistrate's decision and pay you or return your property. Unfortunately, this doesn't happen in every case. You have some options when this happens, however, such as:
- Executing against the defendant's property and assets
- Having a lien placed against the defendant's 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 magistrate decides the case and the decision (or "judgment") is entered into the court records by the clerk, 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.
Also known as "executing judgment," execution is when you take (or "levy") some of the debtor's property or assets to pay what he owes. This is a multi-step process and can be complicated, but generally:
- Ask the court clerk for two forms, a "Notice of Right to Have Exemptions Designated" and a "Motion to Claim Exempt Property;" fill-in parts of the forms, like names and addresses; and have them delivered to or "served on" the defendant, either by registered mail or by the sheriff of the county where the defendant lives
- After receiving these forms, the defendant has 20 days to claim exemptions, that is, claim that some property can't be seized because it's protected by law. If he doesn't do so, or if he returns the exemption motion and it shows that there is property to take, then you ask the court clerk to issue an "execution"
- The clerk will send the execution to the sheriff for the county where the defendant lives or where his property is located, and he'll hand-deliver the execution. The sheriff will demand payment, and if the defendant refuses or has no money to pay, the sheriff will seize the property listed in the execution
- If the sheriff seizes cash from the defendant, he will deliver it to the court clerk. If he takes property, the sheriff will sell it and turn over the sale proceeds to the court clerk. The court clerk will arrange for the money to be delivered to you
With a writ of execution, you can usually get to the defendant-debtor's:
- Personal property, like equipment, cars and boats
- Money in bank accounts
- Certain real property, like vacation and rental property
Exempt property or money that can't be reached through execution includes the defendant-debtor's 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 certain dollar amounts of things like household furnishings and clothing. The court clerk or sheriff should be able to give you a list of exempt property, and the Motion to Claim Exempt Property you get from the clerk contains a partial list.
You have to pay fees for having the execution issued by the clerk and delivered by the sheriff, as well as fees for having the sheriff seize and sell any property. The court clerk or sheriff can explain these fees.
Lien on Real Property
This will prevent the defendant-debtor from selling or even refinancing his real property without having to pay you. In North Carolina, your judgment automatically becomes a lien on the defendant's real property (in the county where the case was decided) as soon as the superior court clerk enters or "records" the judgment in the court's "judgment docket." If he has property in other counties, you can get a lien against it by taking a "transcript" of the judgment docket to the clerk of the superior court for the county where the land is located. The court clerk can help you get a transcript and can explain any fees involved in the lien process.
It's your responsibility to get information about where the defendant's property and assets are located. Without this information it's nearly impossible to have the sheriff seize and sell any property or to get a lien on any property he has outside the county where the small claims case was decided. If the defendant completes the Motion to Claim Exempt Property you send to him, you should get some of this information. If not, and the defendant hasn't paid or "satisfied" the judgment, you can:
- Send the defendant a set of written questions (called "interrogatories") about what property and assets he owns and where they're located. If the defendant refuses to answer the questions, you may ask the magistrate for an order directing him to come to court and answer the questions under oath. If he refuses to do that, he could be arrested and brought to court, and he could be held in contempt of court and fined or placed in jail
- If you went through the execution process, you may ask the court for an order directing the defendant to appear in court and answer questions about his property and assets
- Again, after getting an execution, you may ask the court for an order that directs the defendant, or anyone who possesses or controls his property or assets, to allow you or your attorney to look at and copy any documents or papers relating to his property or assets; or enter onto the defendant's land to inspect or survey it or to have it appraised
Satisfaction of Judgment
After the defendant has paid you in full, he's "satisfied" the judgment. When he's done so, it's your responsibility to go to the small claims court and ask the court clerk to mark the court's records as "paid." If you don't do this within 60 days after being paid, the defendant-debtor can file a lawsuit against you to have the records marked "paid," and you'll have to pay his court costs and attorney's fees.
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 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 the sheriff can seize it or sells some land before I can get my lien recorded?