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Information for Plaintiffs in Small Claims Cases
Collecting on Your
Judgment
If judgment is entered in your favor, the defendant is required to
promptly satisfy the judgment by paying you the amount of money stated in the
judgment and/or returning any personal property described in the judgment. The
defendant does not make the payment to the court and the court will not collect
on the judgment for you. If the defendant does not satisfy the judgment, you
may go through a process called execution on the judgment (ways
you can collect on your judgment). You can, and in most cases you should, talk
to the defendant to try to get the judgment satisfied before you start the
execution process. If you need more information after reading this section, you
should talk to a lawyer. In some counties the court clerk, a court assistance
officer, or the sheriff’s office can give you the forms you will need to file
but they cannot tell you how to complete the forms and they cannot give you
legal advice. The most common ways to execute on a judgment are to garnish
wages or to attach personal property. You can also file a judgment lien against
the defendant’s real
property (land and buildings) and foreclose on the lien (process
of selling the property to pay the judgment lien). The procedures for liens and
foreclosures are too complicated to briefly explain and you should talk to an
attorney to get more information.
When Execution
Can Begin – If the judgment is a default judgment, you can execute
on the judgment immediately after the judgment is entered. If the judgment is
not a default judgment, you must wait until the 30-day appeal deadline is over.
If after that time an appeal is not filed, you can execute on the judgment
immediately. If an appeal is filed, you cannot execute on the judgment issued
at the small claims hearing but if you get a judgment in your favor on appeal,
you would be able to execute on the judgment from the appeal hearing (again,
after the appeal deadline if the case was contested).
Garnishing
Wages – When the defendant’s wages are garnished the defendant’s employer
keeps part of the defendant’s paycheck and pays the money to the sheriff, who
then pays the money to you. If you want to garnish the defendant’s wages you
must ask the court clerk, in the county where your case was heard, for a
certified copy of the judgment or a certificate of judgment. You can ask the
court clerk for a form called “Application and Affidavit for Writ of
Execution.” The form must be typewritten or printed in black ink and it must
include the same caption (name of
the court, names of the plaintiffs and defendants, and case number) as your
judgment.
The application must include the amount of any payments you have already
received on the judgment. You must sign the application in front of a notary or
a court clerk. If you sign it in front of a notary, the notary must sign and
seal the application. You must file the completed application, along with the
certified copy of the judgment or certificate of judgment, with the court clerk.
You must then ask the court clerk for a “Writ of Execution.” You will be
required to pay the court clerk a $2 fee. (This fee will be added to the amount
that the sheriff is to collect.) The court clerk will give you the papers to
take to the sheriff’s office. You 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 your judgment was entered) by
including this request on your writ. The court clerk can tell you the legal
rate that was in effect when your judgment was entered, but neither the court
clerk’s office nor the sheriff’s office will calculate the amount of interest
accrued.
You must take the papers to the sheriff’s office in the county where the
defendant’s employer is located. When you file the papers at the sheriff’s
office you will be required to pay a fee. (This fee will be added to the amount
the sheriff is to collect.) You will need to provide the sheriff’s office with
written instructions, including the name and address of the defendant’s
employer and, in most counties, you can get a form from the sheriff’s office.
The instructions must be typewritten or printed in black ink.
The sheriff will serve the papers on the defendant and the defendant’s
employer. The defendant can avoid the garnishment by paying the amount of money
owed to you directly to the sheriff.
The defendant’s employer is required to withhold a portion of the defendant’s
wages and pay the money to the sheriff. The sheriff will turn the money from
the defendant’s employer over to you unless the defendant files a claim of
exemption with the sheriff.
Attaching
Personal Property – If your judgment orders the defendant to pay money to
you, you 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 you.
The sheriff can seize other types of personal property, sell them at auction,
and pay the proceeds to you. The following are examples of personal property
that may be attached.
·
Money on deposit in the defendant’s bank account –
To attach a bank account you must tell the sheriff’s office the name and
address of the bank where the defendant has an account. The bank will turn the
money in the defendant’s bank account over to the sheriff.
·
If the defendant is a business that has a cash
register, the sheriff can seize the money in the cash register.
·
Other types of personal property such as vehicles,
major household appliances, tools, or equipment, etc – To attach other types of
personal property you must tell the sheriff what property you want taken and
where it is located. You can execute on any personal property in which the
defendant has an interest but it is much easier if the defendant is the only
owner of the property and the property is not subject to any debts or liens.
If you want to attach the defendant’s personal property you
must ask the court clerk, in the county where your case was heard, for a
certified copy of the judgment or a certificate of judgment. You can ask the
court clerk for a form called “Application and Affidavit for Writ of
Execution.” The form must be typewritten or printed in black ink and it must
include the same caption (name of
the court, names of the plaintiffs and defendants, and case number) as your
judgment.
The application must include the amount of any payments you have already
received on the judgment and, if the judgment was for the return of personal
property, any personal property that has already been returned to you. You must
sign the application in front of a notary or a court clerk. If you sign it in
front of a notary, the notary must sign and seal the application. You must file
the completed application, along with the certified copy of the judgment or
certificate of judgment, with the court clerk. You must then ask the court
clerk for a “Writ of Execution.” You will be required to pay the court clerk a
$2 fee. (This fee will be added to the amount that the
sheriff is to collect.) The court clerk will give you the papers to take to the
sheriff’s office. You 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 your judgment was entered) by
including this request on your writ. The court clerk can tell you the legal
rate that was in effect when your judgment was entered, but neither the court
clerk’s office nor the sheriff’s office will calculate the amount of interest
accrued.
You must take the papers to the sheriff’s office in the county where the
defendant’s property to be attached is located. When you file the papers at the
sheriff’s office you will be required to pay a fee. (This fee will be added to
the amount the sheriff is to collect.) You will need to provide the sheriff’s
office with written instructions, including what property you want seized and
where the property is located. If the property is in the possession of someone
other than the defendant, you must tell the sheriff’s office the name and
address of the person who has possession of the property. If there is anyone
else who has an interest
in the property (a co-owner of the property or someone who has filed a
lien on the property), or a security interest in the property (someone who loaned money to the
defendant for the property), you must include the name and address of that
person in the instructions. In most counties, you can get a form from the
sheriff’s office. The instructions must be typewritten or printed in black ink.
You must make reasonable efforts to find out if anyone else has an interest in
the property. You may do this by calling the Idaho Secretary of State’s Office
to find out if anyone has filed a lien or security interest in the property. If
the type of property is one for which title must be, or can be, registered, you
may check with the agency who maintains the register to find out if there are
other registered owners or lienholders. For example, for vehicles you should
check with the county motor vehicles department.
The sheriff will serve the papers on the defendant. If the property is in the
defendant’s 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 you
unless a claim of exemption is filed with the sheriff. If the attached property
is something other than money, the defendant can get the property back by
paying the sheriff the amount of money the defendant owed to you. If the
defendant does not pay the sheriff the amount of money owed to you, the sheriff
will sell the property at auction and pay you the proceeds unless a claim of
exemption is filed with the sheriff. A claim of exemption can be filed by the
defendant or anyone else with an interest in the property.
If your judgment orders the defendant to return personal property to you, the
steps for attaching the personal property are the same as above except that the
sheriff will turn the property over to you instead of selling it at auction and
giving you the proceeds.
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 the defendant the sheriff will also give the defendant a
legal notice. The legal notice has information about the types of money or
property that are exempt and how the defendant 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 the defendant believes that the seized property is exempt, the defendant
must file a claim of exemption with the sheriff’s office within 14 days after
the papers are served on the defendant. If the defendant files a claim of
exemption, the sheriff will notify you within one business day after the claim is filed.
If you want to contest the claim of exemption, you must file a “Motion to
Contest Claim of Exemption” with the court clerk. In some counties you can get
a form from the court clerk. Your motion must be typewritten or printed in
black ink and it must include the same caption (name of the court, names of the
plaintiffs and defendants, and case number) as your judgment. The motion must
include a notice of hearing at the bottom of the motion with spaces for the
court clerk to fill in the date, time, and place of hearing. The motion must be
filed within five business days after you are notified 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 defendant. The hearing will be
scheduled no less than five days and no more than 12 days from the date you
file the motion. At the hearing you should bring any documents or other evidence
that shows that the property is not 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 you do 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 the
defendant. If the defendant 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 you, including the fees you
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 you may be required to pay
the other person for their interest in the property before the sheriff can sell
the property and you would then receive their interest in the property. For
example, if the sheriff seizes the defendant’s car and the car is subject to a
loan, then the loan company has an interest in the car. You may be required to
pay off the remaining debt on the car to the loan company before the sheriff
can auction the car. You would then have the same right to collect the debt
from the defendant that the loan company had (the amount of money you paid to
the loan company.)
2. 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 you do not believe that the third
party actually has an interest in the seized property, you can file a motion to
contest the claim of exemption—the same procedures as for a motion to contest
the claim of exemption by defendant.
Locating
the Defendant’s Property – If you want to garnish the defendant’s wages or
attach the defendant’s property, you must provide the sheriff with written
instructions telling the name and address of the defendant’s employer and/or
what property you want seized and where it is located. The sheriff’s office
will not investigate to find the defendant, the defendant’s employer, or what
assets the defendant has and where they are located. If you do not know what
assets the defendant has or where they can be located, there are some
procedures available to assist you.
·
In some counties you can ask the sheriff’s office,
when you take your papers for execution on the judgment, to do a notice of inquiry (when
the sheriff’s deputy serves the papers on the defendant, the deputy will ask
the defendant where the defendant works, what bank accounts the defendant has,
what other property the defendant has, and where the property is located). The
deputy will write down the information on a notice of inquiry and you will be
provided with a copy.
·
You can ask the court for an order requiring the
defendant to appear in court for a debtor’s examination (defendant must swear or
affirm to tell the truth and you or the judge can ask the defendant questions
about the defendant’s assets). If the defendant does not appear for the
debtor’s examination hearing, or refuses to answer questions, the judge can
hold the defendant in contempt and order the defendant to pay fines and/or go
to jail. If you want the defendant ordered to appear in court, there are
procedures you must follow that are established by law and you should talk to a
lawyer.
Satisfaction
of Judgment
After the defendant has satisfied the judgment (pays the money and/or returns the property as required by the judgment), you must file a “Satisfaction of Judgment” form. In most counties you can get the form from the court clerk. It must be filled out completely and must be typewritten or printed in black ink and have the same caption ((name of the court, names of the plaintiffs and defendants, and case number) as the judgment. You must sign the satisfaction of judgment in front of a court clerk or notary. If you sign it in front of a notary, the notary must sign and seal the document. You must file it with the court clerk in the county where your judgment was entered. If the defendant satisfies the judgment and you fail to file a satisfaction of judgment, the defendant may have a claim against you for damages.
