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Information for Defendants in Small Claims Cases
Collection on
Judgments and Exemptions from Collection
If judgment is entered in favor of the plaintiff, you are required to
promptly satisfy the judgment by paying the amount of money stated in the
judgment and/or returning any personal property described in the judgment.
Payment should be made directly to the plaintiff, not to the court. You should
make the payment in a way that gives you proof that you paid the full amount,
that you paid it to the plaintiff, and the date it was paid (such as a
cancelled check or a copy of a money order sent by certified mail), and you
should keep your proof of payment.
If judgment is entered in favor of the plaintiff and you do not satisfy the
judgment, the plaintiff may begin execution on the judgment (ways
the plaintiff can collect on the judgment). The most common ways to execute on
a judgment are to garnish wages or to attach personal property. The plaintiff
can also file a judgment lien against your real property (land and buildings) and foreclose on the lien (process
of selling the property to pay the judgment lien).
When Execution
Can Begin – If the judgment is a default judgment, the plaintiff can
execute on the judgment immediately after the judgment is entered. If the
judgment is not a default judgment, the plaintiff must wait until the 30-day
appeal deadline is over. If after that time an appeal is not filed, the
plaintiff can execute on the judgment immediately. If an appeal is filed, the
plaintiff cannot execute on the judgment issued at the small claims hearing but
if the plaintiff gets a judgment favor of the plaintiff on appeal, the
plaintiff would be able to execute on the judgment from the appeal hearing
(again, after the appeal deadline if the case was contested).
Garnishing
Wages – If your wages are garnished, your employer is required to withhold a
portion of your paycheck and pay the money to the sheriff. The sheriff will
turn the money from your employer over to the plaintiff unless you file a claim
of exemption with the sheriff. The plaintiff was required to pay the court
clerk a $2 fee to file an application for writ of execution to have your wages
garnished. (That $2 fee will be added to the amount that the sheriff is to
collect from you.) The plaintiff can ask the sheriff’s office to collect judgment interest (amount
of interest that has accrued since the date the judgment was entered) at the legal rate (the
interest rate established by law at the time the judgment was entered) by
including this request on the writ of execution. And when the plaintiff filed
the writ of execution papers with the sheriff’s office, the plaintiff was
required to pay a fee to the sheriff’s office. (This fee will be added to the
amount the sheriff is to collect from you.)
The sheriff will serve the papers on you and your employer. You can avoid the
garnishment by paying the amount of money owed directly to the sheriff.
Attaching
Personal Property – The plaintiff may attach personal property to execute on
the judgment. When personal property (anything other than land or buildings) is
attached, the sheriff seizes (takes) personal property. Sources of money are usually
the most convenient types of property to attach because the sheriff can simply
pay the money over to the plaintiff. The sheriff can seize other types of
personal property, sell them at auction, and pay the proceeds to the plaintiff.
The following are examples of personal property that may be attached.
·
Money on deposit in your bank account – The bank
will turn the money in your bank account over to the sheriff.
·
The sheriff can seize the money in the cash register
from a defendant that is a business.
·
Other types of personal property such as vehicles,
major household appliances, tools, or equipment, etc.
If your personal property is attached, the plaintiff was
required to pay the court clerk a $2 fee for filing an application for writ of
execution. (This fee will be added to the amount that the sheriff is to
collect.) The plaintiff can ask the sheriff’s office to collect judgment interest (amount
of interest that has accrued since the date the judgment was entered) at the legal rate (the
interest rate established by law at the time the judgment was entered) by
including this request on the writ of execution. And when the plaintiff filed
the writ of execution papers with the sheriff’s office, the plaintiff was
required to pay a fee to the sheriff’s office. (This fee will be added to the
amount the sheriff is to collect from you.)
The sheriff will serve the papers on you. If the property is in your possession
the sheriff will seize the property. If the property is in someone else’s
possession the sheriff will also serve copies of the papers on the person who
has possession of the property and that person will be required to turn the
property over to the sheriff. If someone else has an interest in the property,
the sheriff will serve copies of the papers on the other person who has an
interest in the property.
If the attached property is money, the sheriff will turn the money over to the
plaintiff unless a claim of exemption is filed with the sheriff. If the
attached property is something other than money, you
can get the property back by paying the sheriff the amount of money you owed to
the plaintiff. If you do not pay the sheriff the amount of money owed to the
plaintiff, the sheriff will sell the property at auction and pay the proceeds
to the plaintiff unless a claim of exemption is filed with the sheriff. A claim
of exemption can be filed by you or anyone else with an interest in the
property.
If the judgment orders you to return personal property to the plaintiff, the
steps for attaching the personal property are the same as above except that the
sheriff will turn the property over to the plaintiff instead of selling it at
auction and giving the proceeds to the plaintiff.
Claim of
Exemption – There are some types of money and property
that are exempt
from execution (cannot be taken to pay a judgment). When the sheriff
serves the papers on you, the sheriff will also give you a legal notice. The
legal notice has information about the types of money or property that are
exempt and how you can claim an exemption for the property that has been
seized. You can also get a copy of the legal notice from the sheriff’s office.
If you believe that the seized property is exempt, you must file a claim of
exemption with the sheriff’s office within 14 days after the papers are served
on you. If you file a claim of exemption, the sheriff will notify the plaintiff
within one business day after the claim is filed.
If the plaintiff wants to contest the claim of exemption, the plaintiff must
file a “Motion to Contest Claim of Exemption” with the court clerk within five
business days after notification of the claim of exemption. After the court
clerk has filled in the date, time, and place of hearing, a copy will be mailed
to you and the plaintiff. The hearing will be scheduled no less than five days
and no more than 12 days from the date the plaintiff filed the motion. At the
hearing you should bring any documents or other evidence that shows that the
property is exempt. At the hearing the judge will decide whether the property
is exempt and enter an order granting or denying the claim of exemption.
If the plaintiff does not file a motion to contest the claim of exemption, or
if the judge grants the claim of exemption, the sheriff will return the
property to you. If you did not file a claim of exemption, or if the judge
denies the claim of exemption, the sheriff will turn the money or proceeds from
the sale of the attached personal property over to the plaintiff, including the
fees the plaintiff paid to the court clerk and sheriff to execute on the
judgment.
If there is someone else who has an interest in the property that was seized by
the sheriff, that person can also file a third party claim (claim of exemption). The
procedure for a third party claim is the same as above except that there are third
party rights involved and some special issues can arise. The following are two
common examples.
1. If
someone else has an interest in the seized property the plaintiff may be
required to pay the other person for their interest in the property before the
sheriff can sell the property and the plaintiff would then receive their
interest in the property. For example, if the sheriff seizes your car and the
car is subject to a loan, then the loan company has an interest in the car. The
plaintiff may be required to pay off the remaining debt on the car to the loan
company before the sheriff can auction the car. The plaintiff would then have
the same right to collect the debt from you that the loan company had (the
amount of money the plaintiff paid to the loan company.)
1. There may
be an issue as to whether the third party actually has an interest in the
property. If a third party files a claim, and the plaintiff does not believe
that the third party actually has an interest in the seized property, the
plaintiff can file a motion to contest the claim of exemption—the same
procedures as for a motion to contest the claim of exemption by a defendant.
You can also be ordered to appear
in court for a debtor’s
examination (you must swear or affirm to tell the truth and the plaintiff
or the judge can ask you questions about your assets). If you do not appear for
the debtor’s examination hearing, or refuse to answer questions, the judge can
hold you in contempt and order you to pay fines and/or go to jail.
Satisfaction
of Judgment
After you have satisfied the judgment (paid the money and/or returned the property as required by the judgment), the plaintiff must file a “Satisfaction of Judgment” with the court clerk. If you satisfy the judgment and the plaintiff fails to file a satisfaction of judgment, you may have a claim against the plaintiff for any damages you incurred because of the plaintiff’s failure to file the satisfaction of judgment.
