You have won your case and the other party (the judgment debtor) owes you money. The case may be over but your work may not be done. Now you need to collect what you are owed from the judgment debtor. Too often, this is not easily done.
In many states the loser in a case must fill out a form listing his or her assets. Typically, the judgment debtor must send a completed copy of this form to the person who won the case (the judgment creditor) within a certain number of days after the judgment is mailed out by the clerk–unless the judgment debtor pays off the judgment, appeals, or asks the judge to reverse a default judgment. If the judgment debtor fails to complete the statement (which, unfortunately, is all too common), the judgment creditor may be able to ask the court to hold the debtor in contempt of court, and even issue a bench warrant for his or her arrest.
If the judgment debtor doesn't fill out the Statement of Assets form, in most states the judgment creditor can ask the court clerk to issue an order requiring the judgment debtor to appear in court in person to be questioned. In some states, this is called an order for examination or judgment debtor's examination. This order, which must be properly served on the judgment debtor, requires the debtor to show up in court and provide the information personally. Typically, if the debtor fails to show up, the judge can issue a bench warrant for the person's arrest.
If you know where the judgment debtor works, you are in good shape. In most states, you are generally entitled to get approximately 25% of a person's net wages to satisfy a debt. (But if a person has a very low income, the amount you may recover can be considerably less than 25% and possibly nothing at all.) Wage garnishments are not allowed in some states. The sheriff's or marshal's office in your area can supply you with the rules in your state, or you can check online.
If you know where a judgment debtor banks, you can order a sheriff, marshal, or constable to levy on a bank account and get whatever it contains at the time of the levy, subject to several exceptions. Of course, a bank account levy will only work once at a given bank, because the debtor is pretty sure to move the account when he or she realizes that you are emptying it.
Another way to collect money from a person or business against whom you have a small claims judgment is by putting a lien on real estate owned by the debtor. In some states, the entry of a court judgment automatically creates a lien on any real property the debtor owns in the county where the judgment was obtained. In the rest of the states, you must record the judgment with the county to create a lien on the debtor's real property.
Once you have a lien on the judgment debtor's property, especially real property, there is a good chance you'll eventually be paid. It usually works like this: When the judgment debtor wishes to sell the real estate, the title will be clouded by your lien and the debtor will probably pay you off to be able to transfer clear title to a third party. Likewise, if the debtor wishes to refinance, it almost certainly will be contingent on all liens being paid off. Thus, sooner or later, you should get your money. Remember, however, that a portion of the debtor's equity in a home is exempt from collection.
Before you record your lien, make sure you wait until the time to appeal has passed. In many states, here's how to record a property lien against all the debtor's real estate that you know about:
Other types of property are normally much more difficult to grab because all states have debtor's exemption laws that prohibit creditors from taking certain types of property to satisfy a debt. Items protected typically include a portion of or all equity in a family house, furniture, clothes, and much more. (Solve Your Money Troubles: Debt, Credit & Bankruptcy, by Robin Leonard and Margaret Reiter (Nolo), includes a list of the exempt property laws of all 50 states.) Practically speaking, the only types of personal property (as opposed to real estate) other than wages and bank accounts that are normally worth going after are business receipts and property, and motor vehicles in which the judgment debtor has equity that's greater than your state's exemption amount. Theoretically, there are many other assets that you could reach–boats and planes, for example–but in most cases they are not worth the time and expense involved, considering that your judgment is for a modest amount.
Before you can levy on a person's wages or other property, you must get court permission, usually in the form of a writ of execution, writ of garnishment, writ of attachment, or similarly titled document. Some courts also require that you complete a short application for the writ. If you have a small claims judgment, you are entitled to a writ. In most states, you get your writ from the small claims court clerk, who will often help you fill in part of the information. There is often a small fee, which is a recoverable cost.
Once the court issues your writ, take or send it to the sheriff, marshal, or constable in the county where the assets are located. Give the officer:
Don't delay in serving a writ of execution. A writ of execution expires if it is not served on the debtor by the sheriff, marshal, or constable within a certain number of days of the date it was issued by the court. If this time runs out, you will have to go back to the small claims clerk and get another writ of execution issued. So don't get a writ of execution until you have identified the property you want to take.
To seize a person's wages, you will probably have to provide an official copy of the writ of execution form to the sheriff, marshal, or constable in the county where the assets are located, and a letter of instruction. The sheriff or marshal will serve a wage withholding order on the debtor's employer, and you should get some money soon. Typically, an earnings withholding order lasts for a set period of time, such as 90 days, or until the judgment is satisfied or expires.
To levy on a bank account, first contact the sheriff, marshal, or constable's office to be sure they handle this work (if not, contact a process server). You'll need the original and one or more copies of the writ, a letter of instruction, and the correct fee. If a bank account is in the name of the defendant and someone else, you may have to post a bond, depending on your state's laws.
Not all money in a debtor's bank account is up for grabs. Most states have laws that prohibit you from taking exempt funds, and if you do take exempt funds the judgment debtor can force you to return them. Typically, approximately 75% of wages placed in a bank account are exempt (100% if there has been a previous wage attachment involving the same money) for 30 days after payment. Generally, Social Security, certain retirement accounts, and financial aid for school are also exempt.
In many states, it is possible to have someone from the sheriff's, marshal's, or constable's office sent to the business of a person who owes you money to collect it from the cash on hand. It is done with a till tap or a keeper. You will want to ask your court clerk about your local rules.
A till tap consists of a one-time removal of all cash and checks from the business. The fees are reasonable. For a keeper, a deputy from the sheriff's, marshal's, or constable's office goes to the place of business, takes all the cash and checks in the cash register, and then stays there for a set period of time (an eight-hour keeper, a 24-hour keeper, or a 48â