Your hard work and determination finally paid off. You won the case you filed in a West Virginia magistrate court or "small claims" court. The magistrate agreed with you and the person you sued (the "defendant") has to pay you money or turn over some property that rightfully belongs to you. Congratulations!
However, just because you won doesn't necessarily mean you're going to get paid. If you're lucky, the defendant will voluntarily follow the magistrate's decision and pay you or return the property to you. Unfortunately, this doesn't happen in every case. You have some options when this happens, however, such as:
- Getting a Writ of Execution against some of the defendant's personal property
- Getting a Suggestee Execution against the defendant's wages
- Getting a Suggestion of Personal Property against the defendant's property or assets being held by someone else, such as a bank
- Getting a Writ of Possession to have specific personal property turned over to you
- Having lien placed against the defendant's real estate
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, the first thing you should do is talk to the defendant. See if he 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 when you take (or "levy") some of the defendant-debtor's property or assets to pay what he owes. This is a multi-step, and often complicated process, but generally, you need to file an application with the court clerk (he can give you the forms you need). At that time, you have to be able to specify what you want levied and where it's located. Once you've been granted a Writ:
- You have to arrange for it to be delivered to or "served on" the defendant. The clerk can explain your options for service, but usually you have to pay a fee to have it delivered by the sheriff of the area where the defendant lives or where the property is located
- The sheriff must deliver it to the defendant. Then he may take the items listed in the Writ
- Unless the defendant files an affidavit for exemptions, meaning that the asset can't be taken because it's protected by law, the sheriff will sell the property and arrange to have the sale proceeds delivered to you
With a Writ of Execution, you can usually get to the debtor's personal property, like jewelry, cars, and cash he has on hand.
Exempt property or money that can't be reached through the Writ includes:
- His homestead real estate, that is, his home
- Money in an individual retirement account (IRA)
- Money from public assistance programs, such as worker's compensation, unemployment and Social Security benefits, and
- Certain dollar amounts for things like household goods and clothes
You have to pay a fee when you file for the Writ, and there are fees for having the sheriff seize and sell property. The sheriff or court clerk can explain these fees to you.
A Suggestee Execution is used to arrange for money to be taken directly out of the defendant's paycheck and paid to you. In many states this is called "garnishment" or "wage garnishment." This, too, is usually is a complicated process, but generally:
- You have to file an affidavit for suggestee execution, and then arrange for it to be delivered to the defendant-debtor and his employer. Usually, you can pay the clerk to mail it to them
- The employer will let the court know if it has wages or salary belonging to the defendant. If it does, it will withhold part of the defendant-debtor's weekly pay, but usually no more than 20% of his weekly net pay (he gets an exemption for part of his wages) and pay it to the court
- The court clerk will give instructions on how to collect the money
The court clerk can give you all the forms you need for the Suggestee Execution and explain all the fees involved with it.
Suggestion of Personal Property
This is similar to a writ of execution, but with a Suggestion of Personal Property, you're asking for the seizure of the defendant-debtor's personal property that's being held by someone else. This is most commonly used to get money that defendant has in a banking account. In many states this is also a type of garnishment and it's very similar to West Virginia's "suggestee execution." In general, it works like this:
- You file an application with the court clerk and pay him to have the Suggestion mailed to the bank or whomever has the property you want
- The bank or other party will let the court know if it has property belonging to the defendant-debtor
- Unless the defendant files an affidavit for exemptions, the bank will pay the money it has to the court. If it's personal property you're after, the party holding it will arrange for it to be delivered to you
- The court clerk will give you instructions on how to collect money sent to it by a bank
The court clerk can give you all the forms you need for this Suggestion and explain all the fees involved with it.
Writ of Possession
If you sued the defendant to get specific personal property, like a car or furniture, or even specific real property, like in an eviction action, you may ask the court for a Writ of Possession if the defendant-debtor doesn't turn over the property to you. With this Writ, the sheriff will seize the property that's listed in the magistrate's judgment and deliver it to you. The court clerk can give you all the forms you need for this Writ and explain all the fees involved with it.
Lien on Real Property
Filing a lien on real property will prevent the debtor from selling his real property, including his home, without having to pay you. To make this work, you first need to get an "abstract" of your judgment from the magistrate court that decided your case. Then, you need to file or "record" the abstract with the county clerk for any county where the defendant-debtor owns land. The court clerk can get you the abstract you need, and can tell you the fee for it. The county clerk can tell you the fee for recording an abstract in his office.
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 take advantage of any of these collection tactics. If you don't know this information, you can ask the magistrate for a Suggestion of Judgment. This orders the defendant-debtor, or anyone else who has or controls some of his property, to answer questions under oath about his property and assets. If he refuses to answer, the magistrate may do anything in his power to force him to answer the questions, such as holding him in contempt of court, which could include being fined and placed in jail.
The court clerk can give you the forms you need for this Suggestion as well as explain any fees involved.
After the defendant-debtor has paid you or returned your property, he's "satisfied" the judgment and you have to file a Release of Judgment with the magistrate court. Likewise, if you got a lien against the defendant's real property, you need to file a Release of Lien. If you don't file either of these and the defendant-debtor has satisfied the judgment, he may file suit to have the release recorded, 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 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 the defendant-debtor sells his house before I can get my lien recorded or sells most of his valuable personal property before I can have the sheriff seize and sell it?