Your hard work and determination finally paid off. You won the case you filed in the Oregon small claims court, or "people's court," and the judge agreed with you. The defendant (the person you sued) has been ordered to pay you, or to return your property to you. You're to be congratulated.
However, just because you won doesn't necessarily mean you're going to get paid. If you're lucky, the defendant will voluntarily pay you the amount listed in the judgment. Unfortunately, this doesn't happen in every case. Often, the defendant tries to avoid paying all or part of the judgment. You have some options when this happens, however, such as:
- Getting a writ of execution
- Garnishing the defendant's wages
- 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 judge decides the case (called a "judgment") and it's entered into the court records, the first thing you should do is talk to the debtor. See if she can pay you immediately, or try to arrange a payment schedule. If the debtor doesn't pay you, either within the time stated in the judgment or according to your agreement, and no one appeals the judge's decision, you need to have the judgment "certified" by the small claims court. The clerk of the justice or circuit court where the case was filed can get you the form required, and you have to pay a fee. Once the judgment is certified and filed, you can then take other steps to collect on the judgment:
Writ of Execution
Also known as "executing judgment," this is when you take (or "levy") some of the debtor's property or assets to pay what he owes. Or, you can have personal property taken from the debtor's possession. You need to ask the judge for this writ and you have to be able to specify what you want levied and where it's located. Once you've been granted a writ:
- It has to be delivered to (or "served on") the debtor. This usually is done by the sheriff who serves the county in which the defendant lives
- The sheriff will take the items listed in the writ after its been served on the debtor
- Unless the debtor files a "claim of exemption" (meaning that the asset can't be taken by law), the deputy will either give the money to you directly or sell the property and give you the sales proceeds
With a writ of execution, you can usually get to the debtor's:
- Money in bank accounts
- Personal property, like jewelry or art
- Motor vehicles
- Certain real property
Exempt property or money that can't be reached through the writ includes the debtor's homestead real estate (his home) and money he receives from public assistance programs, such as worker's compensation, unemployment, and Social Security benefits.
You need to pay a fee when you apply for this writ and for having it served on the debtor. The court clerk can tell you the fee amounts. Some courts may provide you with the forms you need, while others may not. If your court doesn't provide the forms, the clerk can tell you where you may buy them.
This is when you arrange for money to be taken directly out of the debtor's paycheck and paid to you. To do this, you have to know there the defendant-debtor works, and you have to file an application for the writ. Once you're granted the writ, you need to make sure that it's served on the debtor's employer. It tells the employer to withhold some of the debtor's wages, which usually can't be more than 25% of his weekly paycheck, and to pay it to you.
Again, there are forms you need to file in order to get this writ, and you need to pay a fee for applying for it and for it served on the debtor and his employer. And, if the forms aren't available from the court clerk, she can tell you where you can get them.
Lien on Real Property
This will prevent the debtor from selling his real property or even refinancing it if he hasn't paid your judgment. In Oregon, if the judgment orders the debtor to pay you money (or vice versa if you're the defendant and you won a counterclaim), a lien on the debtor's real estate in the county where the court is located is automatically created when the court administrator files the judgment. To place a lien on debtor's property that's in another county or counties, you need to purchase a "certified" copy of your judgment, or prepare a lien record abstract and have it filed (or "recorded") in the County Clerk Lien Record for the county where the property is located.
It's your responsibility to get information about where the debtor works and where his property and bank accounts are located. Without it you can't ask the court for an order of seizure or garnishment, and you can't get a lien. If you don't know this information, and the defendant-debtor hasn't paid the judgment, you can file a motion for a "Debtor's Examination." If it's granted, the debtor will be ordered to appear in court and answer questions about his property and assets.
Satisfaction of Judgment
Once the debtor has paid the judgment, you must file a "Satisfaction of Judgment" with the small claims court. By doing so, you agree that the debtor has paid you and that he no longer owes you anything. If you don't file it and the debtor has paid you, the debtor may ask the court for an order declaring the debt's been paid. If he does this and you don't challenge it, the defendant has no further obligation to pay you. The debtor will also want this document recorded so the judgment won't appear on his credit reports as an unpaid debt.
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 judgment debtor moved and now I can't find him. What can I do?
- Is there anything I can do if a judgment debtor sells his house before I can get my lien recorded?
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