Your hard work and determination finally paid off. You won the case you filed in a Wisconsin small claims court! The commissioner (or judge, if one was assigned to your case) agreed with you, and the person you sued has been ordered to pay you the money he owes or to turn over some property that rightfully belongs to you. You're to be congratulated.
However, just because you won doesn't necessarily mean you're going to get paid or get your property. If you're lucky, the other person will do what he's been ordered to do and pay you or give you the property voluntarily. Unfortunately, this doesn't happen in every case. You have some options when this happens, however, such as:
- Getting a writ of execution against his personal property
- Garnishing the his wages
- Garnishing his bank accounts
- Getting a writ of replevin for specific personal property
- Having a lien placed against his 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 commissioner 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 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.
Be sure to check the local rules for the particular small claims court that decided your case, or ask that court's clerk, because there may be minor variations from county to county with respect to how these collection processes work.
Writ of Execution
Also known as "executing judgment," a writ of execution is used to take (or "levy") some of the defendant-debtor's property or assets to pay what he owes. This a multi-step and often complicated process, but generally:
- You need to ask the circuit court clerk for an "execution," and complete the form. You'll need to know what property you want taken and where it's located
- The execution must be delivered to or "served on" the defendant-debtor by the sheriff of the county where the property is located. Depending on the local small claims rules of your county, you may have to take the execution to the sheriff, or the court clerk may send it to the sheriff. Usually, the sheriff will charge you a fee for delivering the execution
- Unless the defendant files a "claim of exemption" (meaning that the asset can't be taken because it's protected by law), the sheriff will take non-exempt cash or property (he'll later sell the property), and, depending on the local rules, either give you the cash or sale proceeds or deliver it to the small claims court, which in turn will pay you
With a writ of execution, you can usually get to things like the defendant-debtor's vehicles, jewelry and equipment. Exempt property or money that can't be reached through the writ include his homestead real estate (his home); money he receives from public assistance programs, such as worker's compensation, unemployment and Social Security benefits; and burial plots and a certain amount of household goods. The clerk or the sheriff may be able to give you a list of exempt property, or you can find the exemptions in the Wisconsin laws.
You have to pay a fee when you ask for the execution, as well as fees for having the sheriff seize and sell any personal property. The clerk or sheriff can explain these fees to you.
Wage garnishment is when you arrange for money to be taken directly out of the defendant's paycheck and paid to you. Again, this is a multi-step and often complicated process, but generally it works like this:
- You need to complete a Earnings Garnishment Notice and file it with the clerk of the small claims court
- The clerk will give you two copies of a completed Earning Garnishment form. You need to have one served on the defendant-debtor and one on his employer. The clerk can explain your options for service, but generally you may mail it or pay the sheriff to deliver them
- Unless the defendant files an Answer and claims exemptions, the employer will withhold 20% of his weekly net wages and pay it to you
Again, there are fees involved with wage garnishment, and the clerk can explain them to you when you file.
Bank Account Garnishment
Bank account garnishment is when you arrange for money to be taken directly out of the defendant's bank account and paid to you. To do this, you have to file a Small Claims Garnishment Complaint and Summons for Non-Earnings. You'll need to know there the bank accounts are located. Basically, this form is like starting a new lawsuit: The bank has to file an answer or come to court and explain if it has any non-exempt money belonging to the defendant. If it does, the money is paid to you. If the bank doesn't answer, the court will make it pay you the entire amount owed by the defendant-debtor.
Writ of Replevin
If you sued the defendant to get some specific personal property and he refuses to turn it over to you, you may complete and file a writ of replevin with the court clerk. When he gives you the completed writ, you need to take it to the sheriff. He in turn will serve it on the defendant, seize the property listed in the writ, and arrange for it to be delivered to you. The court clerk or sheriff can explain the fees and costs involved with this writ.
Lien on Real Property
This will prevent the debtor from selling his real property or even refinancing it without having to pay you. To make this work, you need to "docket" or record your judgment in the records of the circuit court where the small claims case was decided. You do this simply by taking a copy of your judgment to the clerk and paying him a docketing fee. If the defendant-debtor has land in a county other than the county where the small claims case was heard, you need to:
- Ask the clerk of the court that decided the case for a "Transcript of Judgment." You need to pay a fee for this
- Take or send the transcript to the clerk of circuit court for the county where the land is located. You'll have to pay that clerk a transcript filing fee and a docketing fee
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 ask the court for an order of seizure or garnishment. When you won the case, the commissioner ordered the defendant to complete and file a Financial Disclosure Statement, which requires him to answer questions about what property he owns and where it's located; where his bank accounts are located; and where he works and how much he makes. If he doesn't file this form, you may file a Motion and Order for Hearing on Contempt, which orders the defendant to either appear in court to answer the questions, pay you, or file a completed Statement. If he fails to do so, he may be held in contempt, which means he could be jailed for up to six months and fined.
Satisfaction of Judgment
Once the defendant-debtor has paid you or returned your property, he's "satisfied" the judgment. When he's done that, you need to complete a Satisfaction of Judgment form and either:
- Send it to the defendant at his last known address, and the defendant is then responsible for filing it with the court clerk, or
- File it with the clerk yourself, but you'll have to pay a filing fee
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 his house before I can get my lien recorded or sells his valuable personal property before the sheriff can seize and sell it?