HOW TO COLLECT YOUR JUDGMENT
FROM THE DEFENDANT |
(1)
Judgment Debtor Exam:
This is an order sent to the party owing the money to appear in
court with a list of assets. This order can be requested
by the plaintiff at the court by completing the required form
and then having it delivered by a process server to the
defendant. A small fee may be required. Both
parties will appear at court on the date and time assigned by the court.
The will meet with a judge or mediator who will determine the assets available for payment of the
debt. This is a solution only where the debtor feels an
obligation to pay the debt in order to eliminate any potential damage to his
credit. If the debtor does not appear for the hearing, a bench
warrant for contempt of court can be issued by the court as long
as the debtor was personally served to appear.
(2) Writ of Execution:
This is a procedure
that allows the
constable or sheriff to seize non-exempt property belonging to the
defendant. Often states have a set amount that will be returned to
the defendant once the assets are sold. A typical amount is
$1500. So, if you have a judgment for $2800 ($2500 + court costs),
the defendant must have at least $4300 in assets to satisfy the
judgment. Cost- approx. $35.00 for the constable to serve the
papers plus $1.50 per mile. The typical filing fee for a Writ of
Execution is $20.00.
These
costs can be included as court costs and will be added to your judgment.
Depending on the court, you may or may not need to be specific in describing
the assets to be seized. If you know the party, you will probably
know what kind of valuable personal property they may own. If you
do not know them personally, you may have to indicate what you would expect they
would own: furniture, tv, computer, stereo, recreational equipment,
automobile, or, depending on the court, you may be able to leave
it open-ended.
(3) Writ of Garnishment:
You may garnishee a defendant's
non-earnings or earnings (generally speaking, non-earnings means their bank account
and earnings means their wages or salary) by completing forms in a garnishment package that the Small
Claims Court will provide you. Both of these procedures require
filing the appropriate forms with the Small Claims Court, then having
them served by a processor on a bank or employer.
There
are two steps involved:
|
(1)
First, complete the garnishment forms and file an
Application for Writ of Garnishment. Complete these forms and give
them to the court for the judge to review. When the Writ page of
the Summons and Writ of Garnishment is signed by the judge, you have
them served on the bank or employer with all appropriate forms detailed in the
garnishment instructions. The garnishee (the bank or employer)
will be required to respond to the court within a set time period
(typically, 10 days). This allows the garnishee to advise
the court of any problems they will have fulfilling the garnishment,
i.e., the bank account may have recently been closed; the employee was
fired and has no wages due, etc.
You will receive a copy of the
garnishee's answer also, so you will be aware of any potential problems.
If the garnishee is an employer, you will be required to send the
defendant a copy of the Writ of Garnishment along with additional forms
within three working days after serving them on the employer.
(2) This second step begins after the garnishee's answer is
received. If the bank or employer is able to comply with the
garnishment, you will complete the forms requesting that the garnishment
be initiated. If the garnishee is a bank, one copy of these
forms will have to be sent to the defendant. When the court signs
these forms, the bank will be required to give you the designated funds
from the defendant's account. Ask the clerk at the Small Claims Court for a Writ of Garnishment package.
Typical cost for filing a Writ of Garnishment - $20.00 plus process
service.
|
(4)
Judgment Lien:
|
(A)
Real Property (Real Estate):
The requirements in states
vary. Generally, if you file your judgment with the county
recorder's office in the county where the defendant owns property, you
will be able to collect your money when the property is sold. This
is because when the defendant sells the property, if a loan is involved
or if there is no loan but the buyer is prudent, a title search will be
performed on the property by a title company or escrow attorney.
The search will include a search of the seller's name as well as the
actual property. Your judgment will appear in this search and the
buyer or lender will almost always require that it be satisfied prior to
closing. Make sure that your address on this judgment is always
up-to-date. Typical cost for recording documents - $10.00
plus minimal costs for each additional page.
(B)
Personal Property:
The requirements in states vary widely. In some
states, you may be able to place a lien against the
defendant's vehicle by filing papers with the Department
of Motor Vehicles. They will require that you
provide a certified copy of your judgment with the
judge's signature along with their specific form for
placing liens.
If your judgment specifically
stipulates that your name should be placed on the title
as a lien holder, they will reissue the title, give you
a copy and send a new copy to the defendant. So,
make sure you want the defendant to know that you know
where he or she is now residing. Otherwise, they
may disappear again.
However, if your judgment states only that you are to be paid
the amount awarded with no specific instructions as to
liens, etc., you may still be able to place a lien on
the vehicle. The Department of Motor Vehicles in
some states will put your lien on record but will not necessarily give
you a copy or send a new lien
to the defendant. However, when the defendant tries to sell
the vehicle, your lien will appear and the buyer cannot
purchase the vehicle unless your judgment is paid
off.
Some states will allow you to place a lien against the
defendant's driver's license or state ID. They
will not be able to renew their license or get a new
license in another state until the judgment is
satisfied. If they try to get a new ID or license
by claiming they haven't had a license for years, the
Motor Vehicles Department will do a national driver's
search on their name to see if there any outstanding
issues - such as your judgment.
Costs vary from state to state but generally are less
than $20.00.
|
(5)
Out of State Defendants:
If the defendant has moved out of state, procedures 2,
3 & 4 are still options for collection. However, for Numbers 2
& 3, you will need to
transfer the Small Claims Court judgment to Superior Court in the county
where the judgment was rendered: Cost - Approx. $20. Then, you will transfer it to the
Superior Court in the state where the defendant is living. This is
called a Transfer of Foreign Judgment. You must do this because
each state requires that judgments meet their specific
requirements before the sheriff or constable can serve the
Writ. Unfortunately, some
states will not allow you to complete the Foreign Judgment paperwork
yourself. They will require that you use an attorney from their
state to do this. Cost for an attorney can range from $250 to
$750.
Additional costs
may be:
|
(1) Copies of your Superior Court
judgment from the county where you received the judgment, approx.
$17.00 - $55.00 depending on whether the state you are transferring to
requires a Certified Copy (1 official stamp) or an Authenticated Copy (3
official stamps);
(2) Filing fee for the Foreign Judgment in the state you
are transferring it to - approx. $50-$100;
(3) Process service for
serving the notice of transfer on the defendant if their address is
known or
(4) If their address is unknown, publication costs in the local legal
publication, approx. $70 - $300. NOTE: This publication procedure
also requires at least one month of notices and a time period for
response from the defendant.
(5) Cost for the sheriff to deliver the
Writ of Execution, approx. $25 - $35, and usually minimal mileage charges. If you have to hire an attorney, he
will handle notification of the sheriff or constable. If you are able to file
the paperwork yourself, then you will have to
send the Writ of Execution to the sheriff or constable yourself. A constable or
sheriff can
act only on judgments from the
county where he officiates.
|
Call the Superior
Court in the county where you intend to file the Foreign Judgment and
request copies of the appropriate forms. If the Clerk advises you
that you have to go through an attorney in that state, then check the
bar association website for that state and find a competent attorney who
understands the process and has reasonable fees. Remember, all the
attorney will be doing is filing forms - not developing an attack
strategy for winning your case. You have already done that
yourself. Note that some contiguous states have reciprocity
agreements for Superior Court judgments. Ask if this is the case
when requesting the forms.
(6) Record the Judgment:
It is advisable to record the judgment with the county
recorder where you received the Small Claims Court judgment. Cost - approx. $11.00. A judgment will remain
public record, typically for five years, and is renewable. In
addition to the advantage of a title search as described in #4, a
certified copy of the recorded judgment can be taken to a credit
reporting agency to be added to the defendant's record.
Your judgment will be available for review by every potential creditor
or employer. In order to clear up the credit record, the defendant
may be required by a creditor to pay off your judgment. Or, it may
become clear to the defendant that it must be paid off in order to
obtain a good job.
Because a thorough title search should include a search of court records in the
county where real estate is being transferred, it is possible that your
judgment may be discovered even if you don't record it. We know of
cases where judgment debtors who were refinancing their homes
were required by the mortgage company to pay off a judgment prior to
closing and these judgments were not recorded with the county.
However, by recording it, you provide additional insurance that the
judgment will turn up in a title search.
(7) Subpoena Powers:
These are the
powers that allow you to snoop legally into someone's personal
information in order to locate assets or find the defendant so you can
have his property seized by the sheriff or garnish his wages or bank
account. It's not just the
detectives on Law and Order who can do this. If you have a Small
Claims Court judgment, you can do it, too.
First, obtain your
judgment. Then obtain the form for a
Civil Subpoena from the Small Claims
Court. Complete it and return it to the court with a copy of your
judgment so the judge can quickly reference your case.
You may be
asked to present it in front of a judge or you may be asked to leave it
with the court. If you leave it, the judge will review it within a
few days and return it to the court clerk. The form will probably contain a section that
requires you to name a processor server who will serve the subpoena on
the party, company, bank, etc. from whom you are subpoenaing
information. In some cases, the court clerk will put the subpoena in
the box of your processor server at the court after the judge signs
it. Ask the court clerk what their policy is.
The subpoena
must be served on the named party by someone not connected with the
suit. It does not have to be a process server but it does have to
be signed and notarized by someone over 18 years of age.
JOHN DOE LAW
SUITS HELP IDENTIFY UNKNOWN INTERNET FRAUDSTERS
If
you do not know the true identity of the person who defrauded
you, you may be able to file a civil suit in your county using a
John Doe for the defendant's name. You would need to
provide all the e-mails, letters, wire transfers, etc. that show
you do not know the identity or location of the defendant but
that you have a clear basis for your civil claims. Your
purpose is not to file for a monetary judgment initially but to
obtain a subpoena for the ISP and e-mail providers of the
unknown fraudster in order to obtain the person's name and
address so that you can file a civil suit.
It is also
possible to subpoena eBay and PayPal for information they have
on the person's true identity if the fraudster used their
services in the fraudulent transaction. This is the legal
process used to obtain the identities of the unknown defendants
in the music download trials and by large corporations such as
Microsoft to sue Web site owners for spam. These lawsuits
were filed in Federal District Court and it is probable that
your small clams court and county courts will tell you to go to
Federal District Court to file your case.
Here are some links to information on John Doe suits:
http://www.ceas.cc/papers-2005/174.pdf
http://digitalmusic.weblogsinc.com/2006/08/07/the-riaa-vs-john-doe-a-laypersons-guide-to-filesharing-lawsui/
http://www.ciol.com/content/search/showarticle1.asp?artid=82361
HOW
TO FILL OUT THE SUBPOENA FORM
TO REQUEST DOCUMENTS |
(1) Check the "Duces Tecum" box which
refers to documents to be
submitted.
(2) In the Duces Tecum section, the wording will be
something like:
YOU ARE ORDERED TO SUBMIT TO THE COURT
NAMED
ABOVE THE FOLLOWING DOCUMENTS BY THE DATE AND
TIME STATED
BELOW.
(3) In the Date and Time boxes, allow at least 10
days to 2 weeks for the
party being served to research the
required documents.
Once you receive the right to subpoena documents, have the subpoena
served as explained above on the company or individual named. If
it is a company, it is advisable to find out from the legal department
or an knowledgeable employee what the company policy is for receiving
subpoenas. For example, cell phone bills for a national company
may have local agents who may be served. And by the way, just to
let you know that the law is on your side: if the recipient of a
subpoena fails to produce documents, a warrant may be issued for their
arrest. Cost - approximately $35.00 for filing the request with the
court or free if served by a friend unconnected with the case.
|
Top
of Page |
