There may come a time when you are forced to take legal proceedings against an individual or a business to recover money owed to you, or perhaps you will need to claim compensation for a loss you have suffered, either because of physically injury or damage to your property. If you are successful at trial or if the other party does not defend the claim, the court will order judgment in your favor. But obtaining a judgment from the court is only the first step. It is often the enforcement of the judgment that can be the more challenging and frustrating stage.
The McGill Law office is committed to not only helping our clients achieve the best outcome in legal proceedings, but ensuring they are able to recover the money awarded to them by the court in the most practical and efficient way. We want to share with our readers the steps that must be taken and the options they have available when enforcing a judgment.
We have prepared a two-part guide that we hope our readers will find informative as well as providing them with the comfort that, if they are owed a debt or are entitled to compensation, the McGill Law Office has the knowledge and experience to best represent their interests.
Under the terms of a judgment the court will order the losing party, the “judgment debtor”, to pay a sum of money to the successful party, the “judgment creditor”. Once you have obtained a judgment, it is up to you to enforce it, the court will not assist in collecting the money on your behalf. Below are the legal steps that need to be taken to collect your judgment.
Requirements before you begin enforcement
You must wait at least 30 days from the date of the Entry of Judgment to begin collection. This period gives the judgment debtor time to pay the debt in full or explore payment arrangements. If the debtor takes no action during the 30 days, you may take steps to enforce the judgment.
During this period we will write to the other party demanding that you be paid the judgment amount immediately. If the debtor is unable to pay the full amount immediately, we will take your instructions as to whether you are willing to accept periodic payments. If an acceptable payment plan can be agreed between you and the debtor, we will complete a form called a Stipulation for Time Payments and a copy will be filed at court. If we cannot agree a payment arrangement with the debtor, we will proceed to enforce the judgment using one or more of the methods below.
Demanding the losing party to disclose their assets to the court
If we need more information about the debtor’s assets in order to levy them, we will request that the court order the debtor to attend a hearing to answer questions about the debtor's assets and income. In order to compel a debtor to attend a hearing we would make an application to the court for an order for Appearance and Examination. The application is issued with a hearing date by the clerk of the court and must then be served on the debtor.
If the debtor fails to pay the amount specified in the Appearance and Examination, they will have to attend a hearing. At the hearing the judge will make the debtor answer questions we have prepared, which will typically consist of questions about the real estate they own, how much income they earn and the amount of money they have in the bank. If the debtor fails to appear for the hearing, a bench warrant may be issued for their arrest.
Receiving money from the losing party’s employer
This method of enforcement is legally referred to as an Earnings Withholding Order or Wage Garnishment, as it was historically known. An Earnings Withholding Order requires the debtor’s employer to send up to 25% of the debtor’s net (after tax) wages to the Sheriff, who then passes it on to us on your behalf. If the employer has already been served with an Earnings Withholding Order for the debtor, the order for withholding may not be processed until the previous order is paid off.
In order to take this course of enforcement we will need to know where the debtor works. We may already know this information or we may have obtained in the court’s examination of the debtor. If the debtor is self-employed, an Earnings Withholding Order is not an enforcement option that can be pursued and we will have to consider one of the alternative methods outlined below.
We then need to serve an issued Writ of Execution and Application for Earnings for Withholding Order on the debtor’s employer. In Marin County these documents can be served by Sheriff’s office for $35. We will also need to complete Sheriff's Instructions that provide details of the name and address of the place of business being served. The employer must respond to the Sheriff within 15 days confirming that the debtor works there and how frequently they are paid. The debtor may challenge the amount of the seizure of their wages if they can prove they need part or all of earnings withheld to support themselves or their family.
Receiving money from the losing party’s bank account
Under this enforcement process the debtor’s bank account will be frozen for 10 days, during which time the debtor is notified of the levy. The bank is then required to give any money in the account at the time of the levy, up to the judgment amount plus costs, to the Sheriff’s office. The Sheriff holds the funds for 20 days and releases the funds to us on your behalf. You must know both the name of the judgment debtor’s bank and which branch the debtor uses. It is very helpful to have the account number, however it is not necessary. If needed, information can be obtained from the court’s examination of the debtor.
We will give the Sheriff's office a Writ of Execution and Sheriff’s Instructions. When the Sheriff freezes the account, the judgment debtor will receive a Notice of Levy. The judgment debtor may oppose the levy of bank funds by filing a Claim of Exemption with the Sheriff listed on the Notice of Levy. We will then have to oppose the Claim of Exemption and a hearing date will be set for the court to hear the debtor’s objections.
In Part Two of Enforcing a Court Judgment we will look at securing a lien over property, seizing money of a business, seizing personal property of a business and recovering the costs of enforcing your judgment.
Content prepared by Richard Parry. © Richard Parry, 2015
This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel. You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.