Getting What You Fought For
Start Here
The goal of most lawsuits is money!
This class will explain how to get your money after you win.
The judge will never order someone to pay you. The judge will only sign an order saying you won and that the loser “owes” you. Just another piece of paper.
When a courtroom battle is over, and the judge grants final judgment in your favor, the order will say something like what you see in the sidebar at right:
“THIS CAUSE having come before the Court, and the Court having heard argument of counsel, considered the evidence, examined the file, and being otherwise fully advised in the premises, it is ordered and adjudged that Defendant owes Plaintiff the sum of $1,723,056.29,
for which let execution issue.”
You won!
Congratulations!
But, what good is that piece of paper?
It doesn’t order the loser to pay you.
It just says defendant owes you.
Oh, and yes, it does says something very special at the end. Pay careful attention!
It says, ” … for which let execution issue.”
Why that short phrase is so important and how to use it to force the loser (now called your “judgment debtor”) to pay is explained in this class in a way you will understand and be able to use.
Writ of Execution
I get an electric bill each month that says I owe such-and-such amount of money. My electric bill does not say, ” … for which let execution issue.” It just says I owe!
I get statements from credit card companies every month. They also say I owe a certain amount of money. But, none of my credit card bills say, “for which let execution issue.”
NOTE: You may start a judgment collection service with the knowledge you gain in this class. You do not need to be a lawyer to collect judgments if you acquire a legal interest in the judgment. More later!
A judgment order that only says the loser owes a certain amount of money has little value.
To have value, a judgment order needs to include the magic phrase, ” … for which let execution issue.”
The “execution” referred to by a judgment order is a “writ of execution” … another order that the clerk of court will issue upon your request.
The order directs the court clerk to issue a writ of execution upon your request. The clerk can do this without further authority from the judge, because the order says, “let execution issue”. The clerk will rely on the order and issue the writ upon your request.
So, what is a writ of execution, and what does it do for you?
Sheriffs act on orders (or writs) issued by state court judges, and U.S. Marshals act on orders (or writs) from federal court judges.
Simply, it’s an order commanding the Sheriff to seize all non-exempt property of the judgment debtor and sell it at auction until the amount of debt stated in judgment has been fully paid and satisfied (together with the Sheriff’s costs to seize, store, advertise, and sell the judgment debtor’s non-exempt property).
Without a writ of execution, the Sheriff has no authority to seize the loser’s property.
Without a writ of execution, you can win a lawsuit and not be able to collect a dime!
If the judgment is re-recorded (explained later in this class) it may create a lien on certain of the judgment debtor’s property, however the Sheriff will do nothing to seize the judgment debtor’s property to satisfy your judgment until the Sheriff has been served with a writ of execution giving him lawful authority to do so.
Using a Writ of Execution
To get your money using a writ of execution, do the following:
- Get “… for which let execution issue” language in your final judgment.
- Use post-judgment discovery to find what non-exempt property the loser owns.
- Get the writ from the clerk.
- Serve the Sheriff with the writ. (The clerk may do this for you.)
- Tell the Sheriff what non-exempt property the loser owns and where the property is located (giving any extra details to aid the Sheriff’s deputies to find the property).
- Pay any advance fees the Sheriff may require.
- Wait for the Sheriff to seize, advertise, and sell the judgment debtor’s non-exempt property (giving you a chance to bid on it) to satisfy your judgment.
If you don’t intend (or don’t know how) to exercise your post-judgment power to get money when you win your case, why sue in the first place?
There’s no greater waste of time and money than a lawsuit that gets you nothing!
Writ of Garnishment
If you cannot satisfy your judgment with a writ of execution because your judgment debtor owns no “non-exempt” property of value, you may be able to collect with a Writ of Garnishment authorizing the Sheriff to levy on the debtor’s “non-exempt” earnings.
What’s “non-exempt” depends on the jurisdiction and changes often as the laws change to protect the indigent.
Generally, the following are exempt and protected from levy:
- Minimum wage.
- Household income below federal “poverty level”.
- Social Security.
- Public Assistance.
- Certain pensions and retirement plans.
Always refer to current official government position on what earnings are exempt.
Typically, garnishment is a slow-pay way of getting your money. If seizing a debtor’s property cannot satisfy your judgment, however, it may be the only way to get anything at all.
Collection in General
Collecting the judgment is necessary … or the effort and money and agonizing time you spent to sue is wasted.
You might have spent all that effort, money, and time doing something fun or useful!
If a hired lawyer wins a judgment for you, you’ll be expected to dig deeper in your pockets to pay the lawyer to do post-judgment discovery and further work to collect the judgment for you.
If a lawyer is working for a contingency fee (not get paid unless he wins AND collects) he’ll jump at that judgment money as soon as the ink is dry on the judge’s order!
Or, you can learn how to do it yourself.
WARNING: A lawyer may know how to win a judgment yet know little or nothing about what it takes to collect one. Don’t pay a lawyer to learn how! If you must pay a lawyer to collect a judgment for you, make certain the lawyer knows what he or she is doing and has done it successfully several times before, or you may end up paying the lawyer for hours spent in his library learning how to do it. Lawyers charge for their time, of course.
By finishing this class, you’ll be well on your way to doing it yourself … or at least knowing what must be done to collect what’s owed.
Turning Paper Into Cash
What must be done to turn a court order into cash?
A court order is worthless unless it can be enforced.
You can’t use a court order to buy groceries.
You can’t use a court order to pay your electric bill.
You can’t use a court order to go on that ocean voyage you’ve been planning.
A court order is, after all, just a piece of paper!
Weary months or even agonizing years of a litigant’s life may drain away, never to be recaptured, before the judge can be convinced to enter an order granting final judgment.
Children grow old.
The new car rusts.
Hair turns gray or thins and disappears.
Wallets and bank accounts dwindle.
All for a piece of paper?
Of course not!
You Want Money!
You want to turn the judgment debtor’s shiny boat, fancy car, and expensive gun collection into cash … and as much as you can get!
If the judgment debtor has assets tied up in stock portfolios, bank deposits, annuities, or other investment, you want that, too!
Money is the reason most people battle their way through lawsuits.
Not a piece of paper.
If you’ve been thinking about suing someone but haven’t yet filed your lawsuit, ask yourself these questions:
- Does defendant own any non-exempt property … what’s the total amount worth?
- Does defendant have any cash in a bank or coffee can buried in his backyard … how much?
- Does defendant have a portfolio of stocks and bonds … what’s it all worth at present market prices?
- Is it likely defendant will seek relief in bankruptcy and thereby put all his assets at risk just to avoid paying you?
If defendant is a long-standing business or a wealthy individual with a lovely home on the ritzy side of town, chances are your favorable judgment will be collectible.
If defendant works for minimum wage, drives an old car, and has 12 kids and a mother-in-law living with him and his wife in a rental residence on the wrong side of the tracks, chances are your lawsuit will be a waste of time and money – even if you win!
You really can’t get blood out of a turnip, as the old adage insists. All you get is the turnip, and if the turnip is someone who has nothing for you to win from suing him, it makes no sense to try.
If, on the other hand, you’re confident there’s a shining pot filled with glittering gold at the end of your litigation rainbow, then full speed ahead!
The pot of gold may contain a yacht, jet airplane, luxury automobile, stocks, bonds, cash value of insurance policy, accounts receivable, overstuffed checking account, rare coins, artwork, farm machinery, motorcycle, gun collection … anything of value that belongs to the judgment debtor and is not “exempt property”. Exempt property
covered later
in this class.
If you have any doubt about whether your potential judgment debtor is “collectable”, don’t sue until you clear the doubt!
If you can’t find out on your own, hire a private detective to do a background check on your defendant. You might as well spend a few dollars and discover the person you intended to sue is judgment-proof than spend big bucks on legal fees and lose valuable time filing a lawsuit that can gain you absolutely nothing!
Although it makes no sense to sue a bankrupt or homeless street person, it may be worth the risk if there is any reasonable likelihood the bankrupt or street person is about to inherit from a rich uncle or otherwise recover from poverty any time soon.
On the other hand, it’s just as foolish to sue a savvy millionaire whose money is held jointly with others or titled in the name of an overseas trust you won’t to be able to bust. Just because someone appears to be wealthy, does not mean their wealth can be taken from them. Some people are wealthy because they know how to hide their money!
Most people do not hide their money nor sleep in cardboard boxes, however.
Most people have something of value you can collect, once you get your judgment.
Even kitchen appliances and exercise equipment can be forcibly taken from a judgment debtor, if the court enters an order stating they owe you money “for which let execution issue.”
Before you file a lawsuit, do all you possibly can to find out if your defendant owns any non-exempt property free-and-clear in his own name sufficient to satisfy the judgment you seek.
If you’ve already filed (or you already have a judgment), the remainder of this class will show you how to collect what the court’s order of final judgment says you’re owed.
Execution
The magic “let execution issue” in the final order is critical.
It’s your principal power to collect. (Garnishment is another power, but not nearly so powerful nor quick. Garnishment is covered later in this class.)
Without a writ granting you power to collect, your judgment is worthless!
What can you do to make certain the writ language is in the final judgment?
What can you do if it’s left out?
The phrase “… for which let execution issue” authorizes the court clerk to issue a Writ of Execution.
A writ of execution, like all other “writs”, is a court order. It is sometimes called, simply, an execution.
It has nothing to do with capital punishment or strapping some poor soul to a gurney for lethal injection.
An execution authorizes a Sheriff (or U.S. Marshall, if the judgment is from a federal court) to forcibly take possession of the non-exempt property of a judgment debtor, sell it at auction, and distribute the proceeds to the judgment creditor (that’s you) after deducting the costs of seizure, advertising, and sale.
For simplicity hereafter unless otherwise noted we’ll focus on collecting judgments pro se in state court using your local Sheriff, instead of federal court using the U.S. Marshal Service.
The amount of property seized by the Sheriff’s levy should not exceed that which is sufficient to satisfy the amount of the judgment itself (plus the Sheriff’s costs and any post-judgment interest that may be allowed).
The clerk will not issue the writ until directed to do so by the judgment creditor.
That’s you!
A licensed member of the bar (subject to extreme discipline for doing things incorrectly or dishonestly) can direct the clerk to issue a writ of execution and send it to the Sheriff by simply writing a letter to the clerk.
A pro se litigant (operating without a licensed attorney) should go to the clerk’s office in person. Bring a copy of the final judgment. Show your copy of the judgment to the clerk (or provide the case number, so the clerk can look it up) and politely ask what must be done to have the writ issued and sent to the Sheriff for docketing, i.e., put on the Sheriff’s to-do calendar.
The clerk should not rely on your copy of the judgment order. The clerk should go to the court’s file and find the original order to verify your request is valid and to ensure that the magic “… for which let execution issue” language is in the order.
Follow the clerk’s instructions to the letter. You may be provided with a form to fill out, describing what property you know (or believe) the judgment debtor owns and where it may be found. If no form is provided, you should write a letter to the Sheriff’s office giving as much information as you may have to assist in the levy.
The Sheriff will have a “Civil Division” that deals with writs and levies (as well as service of process, summonses, etc.). This is the division that will probably handle your requests.
Once the writ is docketed with the Sheriff and the Sheriff’s Civil Division is advised what and where the judgment debtor’s property is, you will probably be required to post a bond to cover the Sheriff’s costs. This will be returned to you if the Sheriff succeeds in seizing, advertising, and selling sufficient property of the judgment debtor to cover the Sheriff’s costs.
And, of course, whatever is obtained over and above the Sheriff’s costs goes to you!
The seizure, advertising, and sale is pretty much up to the Sheriff. There is little for you to do but wait.
Without the writ, no one has authority to seize a judgment debtor’s property.
With the writ, the court’s power to seize is transferred to the officer holding the writ.
The following is a typical writ of execution. The writ is typically issued by the clerk on the clerk’s own form. The sample provided here is just to show you what a writ commands.
IN THE THIRTIETH JUDICIAL CIRCUIT COURT
IN AND FOR SUNSHINE COUNTY, FLORIDA
Case No. 2012-123
Judge Benchpounder
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT,
Defendant. ____________________/
EXECUTION
THE STATE OF FLORIDA:
To Each Sheriff of the State:
YOU ARE COMMANDED to levy on the property subject to execution of the defendant Danny Defendant in the sum of $56,423 with interest at 12%/year from 30 February 2012 until paid and to have this writ before the court when satisfied.
DATED this ___ day of _______________ 2012.
CATHERINE CLERK
As Clerk of the Court
by ____________________________
Deputy Clerk
Interest
Not all judgments accrue interest.
Of those that do, there are two kinds of interest that can be ordered in a final judgment and made part of the amount the judgment debtor owes:
- post-judgment interest
- pre-judgment interest
Post-judgment interest begins to accrue on the date a judgment is entered, i.e., the day a judge signs the final judgment order and files it with the clerk to be made part of the official court file.
Pre-judgment interest (you guessed it) is calculated from a date prior to entry of the final judgment order, typically from the time of the winner’s loss. It could be based on a promissory note, in which case interest would be calculated based on the amount that would have been due if the promissory note had been paid on time. It could be based on a contract that provided for interest to accrue after a certain period of time if the contract amount was not paid when due. Or, it could accrue from any date decided by the court as a date from which the winner is entitled to interest on the amount owed by the judgment debtor.
Post-judgment interest is frequently added tojudgments as a matter of law and is computed on an amount currently charged on judgments. This amount may be set by the legislature or the courts. Check your local jurisdiction for details.
Pre-Judgment Interest
Pre-judgment interest must be specifically stated in the final judgment order, or the winner will not be able to collect. Therefore (as explained more fully elsewhere in this course) when the court grants you a judgment, always offer to prepare the final judgment order. Do this as explained more fully elsewhere in this course. Make certain the final judgment order states that the judgment debtor owes pre-judgment interest and specify the date from which interest should be calculated.
Promissory Notes
Actions to collect on defaulted interest-bearing promissory notes are always entitled to pre-judgment and post-judgment interest. After all, the plaintiff was entitled to interest on the note before default, so why shouldn’t she be entitled to interest after default and at all times thereafter until the full amount due under the terms of the note (including accrued interest) is fully satisfied? That’s what the lawsuit was about – collecting the full amount due under the terms of the note – so the court’s final order should include a recitation to the effect that the judgment includes both pre-judgment and post-judgment interest.
A good draftsman will include in every promissory note language that “accelerates” the note upon default, i.e., providing in the event of default that
- the full amount of the note becomes immediately due and
- the interest rate increases to the highest rate allowed by law (i.e., a rate of interest just short of usury).
Inexperienced lawyers often leave out the acceleration clause. Fill-in-the blank forms (from sources other than this course) often omit critical details like acceleration clauses. This will invariably result in drastic losses to the plaintiff trying to sue on a promissory note, only to discover the full amount of the note is not due when the borrower defaults. Once a note is signed and value given, of course, it’s too late to change the terms. The court cannot change terms of a promissory note “after the fact” to insert an acceleration clause that should have been included before it was signed and value given.
Without an acceleration clause, holders of notes may sue only to recover the amount due as of the date of filing suit … not the full balance. Since some payments are not yet “due”, the full amount of the note is not yet “payable”, and the plaintiff has no cause of action to collect anything more than the amount that is now “due”. (Don’t be caught in this trap by an amateur attorney or store-bought forms.) In the absence of an acceleration clause to “accelerate the due date”, the defendant is only in default on payments missed and not the full amount – leaving plaintiff to either bring suit as each defaulted payment comes due or wait until the end of the term (by which time defendant may have moved, changed his name, or even died).
Similarly, poorly-drafted notes do not accelerate interest to the “highest rate allowed by law”, so plaintiffs suing on such notes are only allowed the rate of interest provided by the note itself. In some states the “highest rate allowed” may exceed 20%! The difference between collecting judgment on an un-accelerated note at 8% interest, for example, and an accelerated note earning 20% (or more, depending on local state law) can be a very significant amount!
However, failure to ensure that the final order includes both pre-judgment and post-judgment interest means the winner can recover only the principal amount due, with no interest, no matter how long it takes to collect the judgment.
Contracts
Some (but certainly not all) contracts include language providing for interest to accrue on unpaid balances.
Judgments on such contracts should include both pre-judgment and post-judgment interest.
The most common example of a contract that earns interest is the credit-card contract.
Another common example is the supply invoice that reads, “Net 30 days, interest at 1.5% per month thereafter” – or words to that effect. A savvy vendor will require his delivery people to get the buyer’s signature on the supply invoice at time of delivery. By signing the delivery receipt, the buyer accepts the “terms” of the contract formed thereby. If the buyer pays in full within 30 days (or whatever time the “net” is due) no interest accrues. If he fails to pay before expiration of the “net” period after delivery, his obligation attaches, and the amount due begins to accrue interest at the rate stated in the agreement he signed.
The attorney-client agreements I require all my clients to sign before I undertake to represent them provides just such terms. If the client pays his bill on time, no interest is added. If the client is late in paying what is due me for my services, our agreement provides for me to charge interest on the unpaid amount. A client’s signature on my attorney-client agreement gives me an unquestioned right to sue for my fees, if my client refuses to pay, and to charge attorney’s fees for my trouble. The final judgment, of course, will provide for pre-judgment as well as post-judgment interest.
Contracts can provide for interest to be included in a final judgment, if the contract is properly written. [See the Reference class on Contracts in this course.]
Caveat
If you do not ask for interest in your complaint, the court may deny your right to include interest in the judgment. If your contract provides for attorneys fees in the event of default, and you don’t ask for attorneys fees in your complaint, the court may deny your right to include attorneys fees in the judgment.
Attorneys Fees
More civil cases are appealed over entitlement to attorneys fees than any other issue. This shouldn’t surprise anyone, since attorneys are typically more interested in how much they’re going to receive than how much their clients will get … so the issue is hotly argued on appeal.
If you have a lawyer working for you, he must not fail to demand attorneys fees in your pleadings, or the court may deny your right to include them in final judgment!
Post-Judgment Discovery
Before you can collect your judgment, you must know what valuable non-exempt property your debtor owns.
You could probably get some clues digging through his garbage pail, but it’s probably easier to use court-authorized post-judgment discovery.
Depending on the law in your jurisdiction, you may use any of the following to find out what your judgment debtor owns:
- Requests for Admissions
- Requests for Production
- Interrogatories
- Depositions
- Subpoena and other Court Orders
Depositions are sometimes the most efficient way to get post-judgment discovery of your judgment debtor’s assets. Here are some sample questions to ask at the deposition of your judgment debtor.
QUESTIONS FOR DEPOSITION IN AID OF EXECUTION
- Name?
- Are you the defendant in this action?
- Do you understand that this is a deposition in aid of execution; that you are under oath; and that should you fail to truthfully answer the questions I will ask today, you may be subject to penalties under law? [] yes [] no
- Address (actual legal residence and mailing)?
- Legal residence now, how long?
- Phone (home)?
- Phone (work)?
- Date of birth?
- Social Security Number?
- Drivers license number / state?
- Have you ever filed a petition for bankruptcy or for any other debtor relief under the laws of the United States? [] yes [] no Explain:
- Do you own any real estate of any nature in Florida, such as the home in which you reside? [] yes [] no
- Is the property mortgaged? [] yes [] no If so, who is the mortgagee and what is the approximate balance you owe?
- What was the date of purchase and the purchase price?
- What is the approximate value of the property?
- Do you own any real estate of any nature outside of Florida?
[] yes [] no- Is the property mortgaged? [] yes [] no If so, who is the mortgagee and what is the approximate balance you owe?
- What was the date of purchase and the purchase price?
- What is the approximate value of the property?
- Have you sold any real estate that you owned within the past two years? [] yes [] no If so, to whom was it sold, and what was the price?
- Do you own any automobiles or motor vehicles, boats, campers, trailer, etc.? [] yes [] no If so, describe them.
- Are any of the vehicles or others financed? [] yes [] no If so, by whom, and what is the present balance that you owe?
- What is the present location of the motor vehicle, boat, camper, etc.?
- What is the present value of the motor vehicle, boat, camper, etc.?
- Describe any personal property which you own, such as furniture, television sets, stereo equipment, computer equipment, clothing, jewelry, furs, paintings, rugs, athletic equipment, etc.
- Is any of such property financed? [] yes [] no If so, by whom, and what is the balance that you owe?
- What is the present location of the property?
- What is the present value of the property?
- Do you own any collectors items, such as stamp collections, valuable books, objects of art, china, silver, or the like? [] yes [] no
- Is any of such property financed? [] yes [] no If so, by whom, and what is the balance that you owe?
- What is the present location of the property?
- What is the present value of the property?
- Do you own any patent rights, copyrights, licenses? [] yes [] no
- Do you own any life insurance policies? [] yes [] no If so, please describe.
- Are you the beneficiary of a trust, or a devisee under anyone’s will? [] yes [] no
- Please describe your interest, the amounts paid to you or to be paid to you, the dates of payment, and the identity and location of the person paying you.
- Do you have any bank accounts, checking, savings, or otherwise with any bank, credit union, employee savings fund, loan institutions or other organization? [] yes [] no
- Where, in what institution? Give address:
- What is the account number and present balance?
- Does anyone owe you any money or property of any kind? [] yes [] no If so, state the name(s) and address(es), the amount(s) owed, and the circumstances under which the person(s) came to owe you the money or property.
- Do you have any written evidence of the loan?
[] yes [] no If so, please describe it. - Have you brought suit against any person or corporation within the past 3 years? [] yes [] no If so, state the style of the case (names of parties), the case number and the court location.
- Are you presently employed, self-employed or otherwise?
- What is the name and address of your employer?
- What is the nature of the business?
- What is your salary or income?
- How often are you paid?
- Do you have a pension or profit-sharing plan? [] yes []no
- If so, what is the present value of your interest?
- Do you have any other income, from any source? [] yes [] no
If so, describe the source, the amounts of payments made to you, and the date of payment. - Do you have any claims pending against an insurance company or for workman’s compensation or the like? [] yes [] no If so, give details.
- Do you owe money to anyone, other than as previously discussed? [] yes [] no
- If so, to whom do you owe the money, and how much do you owe?
- What is the name and address of the person (or corporation, etc.) to whom you owe the money?
- What is the approximate total of your monthly expenses, including rent or mortgage payment, food, clothing, entertainment, utilities, insurance and miscellaneous expenses such as loan payments and the like?
If your jurisdiction allows use of interrogatories for post-judgment discovery, you may be able to use the foregoing questions.
Levy
A levy is nothing more than using officers of the law to seize the judgment debtor’s property in spite of the judgment debtor’s protests and resistance.
You should never try to levy without the assistance of at least one grim-faced, burly-shouldered, badge-carrying, gun-toting officer of the law!
There are three kinds of property that may be subject to execution:
Real Property: land and things attached to land, such as houses, barns, and swimming pools, etc.
Tangible Personal Property: tangible things detached from land, such as cars, boats, airplanes, motorcycles, coin and stamp collections, furniture, computers, guns, etc.
Intangible Property: cash, bank deposits, stocks, bonds, cash value of life insurance policies, annuities, accounts receivable (money owed to debtor by third parties), etc.
Some property is exempt from levy, depending on state and federal law. In Florida, for example, the debtor’s homestead is exempt.
Part of your debtor’s wages may be exempt.
Check local official authorities to know what assets are exempt in your jurisdiction.
Renewing Judgments
If you can’t collect your judgment today, because the judgment debtor has nothing to levy, don’t despair.
The judgment debtor’s circumstance will change.
Perhaps in a year or two (or maybe even longer) the debtor may be filthy rich.
He could win the lottery.
He could inherit millions from a favorite aunt.
He could even go to college and get a real job!
Don’t let your judgment expire.
In many states, judgments (and along with them the writ of execution) expire after a set period of time. This is so there is some certainty to the law, a point in time when the judgment is forgiven … if the judgment creditor does nothing to renew the judgment.
The process for renewing a judgment varies from state-to-state. In Florida, for example (at the time of writing this class) all judgments remain effective for seven (7) years from the date of entry (i.e., the date the judge signs the order, not the date when the judge verbally announced in court that the plaintiff won). If the plaintiff re-records his judgment during the last of those seven years, the judgment is renewed for another seven years (i.e., from the date of renewal). The plaintiff may then renew once more, however the total life-span of a judgment in Florida will not exceed twenty (20) years. And, if the judgment is not renewed during the first 7 years, it expires at the end of 7 years.
A lot can happen in 7 years.
Even more can happen in 20!
Lotteries are won. Rich uncles die. Businesses flourish.
Recording the Satisfaction
Once a judgment has been fully satisfied, the judgment creditor should record a paper in the court file called a “Satisfaction of Judgment”.
This paper should state the date of the original judgment order and declare that the judgment has been satisfied in full.
In most states this is required … but it is often ignored.
A savvy judgment debtor wishing to save (or, at least, re-establish his credit rating) will demand that a satisfaction be filed … and generally has the right to petition the court for an order directing the judgment creditor to comply. The problem here, of course, is proving the debt was paid in full!
If You’re a Judgment Debtor
A disreputable judgment creditor may obtain payment directly from the judgment debtor (i.e., without going through the Sheriff) and then deny being paid!
If you are a judgment debtor, demand a signed-and-dated receipt for everything you tender to the judgment creditor and, if the Sheriff levies on your property, demand a signed-and-dated description of all property taken into custody by his deputies.
Then, if the judgment creditor refuses to file a satisfaction, you have evidence to prove you satisfied the debt.
Otherwise you’ll be left holding the proverbial bag.
Third-Party Testimony
You may subpoena bank records of the judgment debtor.
You may depose employers.
You may even ask his wife whether he really conveyed that boat to her as part of a retirement plan, or whether he confided in her beforehand that it was just to defeat claims of creditors!
There is virtually no limit to what you can discover so long as your efforts are all relative in some reasonable way to finding property of a judgment debtor subject to levy (i.e., non-exempt property).
Rules of Evidence
Post-judgment discovery is subject to the same rules of evidence that controlled what facts were admitted in court before final judgment was entered.
Study the class on evidence!
Remember: There are two purposes for post-judgment discovery:
Ø Make the judgment debtor understand that the court has power to direct the Sheriff to take immediate possession of his property and
Ø Obtain admissible evidence of what the judgment debtor owns, who owes him money, and what he is likely to receive from others in the future.
When post-judgment discovery is handled well, the judgment debtor may volunteer to surrender property just to avoid having the Sheriff come and get it!
If you must apply to the court for assistance with collection, you’ll need evidence of the judgment debtor’s assets that is admissible … or the court may deny your application for its help.
Conclusion
Un-collectable judgments are worthless.
Unrecoverable time and money spent to win an un-collectable judgment is useless waste.
Few lawyers bother collecting judgments after they win for you (unless the sum is very large, the judgment debtor very rich, and the lawyer expecting to grab a piece of the pie).
Therefore, knowing how to collect judgments is just as important as knowing how to win one in the first place!
If you can’t collect at the end of the battle, why fight?
Apply what you learned in this class and you should be able to collect from all but the most penurious judgment-proof debtors.
Investigate potential defendants before you sue.
Ask around. Consider where they live, the car they drive, whether they have a boat or an airplane.
Search the public records before you sue to see if others have outstanding judgments against your would-be defendant.
Check with the Sheriff to see if there are un-satisfied writs docketed for service on your defendant.
And, don’t be deceived by the appearance of riches. Many seemingly wealthy people are up to their eyeballs in debt. Many have outstanding judgments against them already, writs docketed in the Sheriff’s office, and even lawsuits against them currently in progress.
It makes no sense to sue people who have nothing you can collect at the end of the race, unless you’re willing to wait a long time to collect and possibly never get a dime.
On the other hand, if you think your bringing a lawsuit offers some reasonable probability of getting something of value worth fighting for, go for it full steam ahead!
Quiz on Collecting Judgments.
