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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.


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