Many times a client will come in with a pretty open and shut civil case. Typically those are breach of contract cases where the client has performed his/her obligation under the contract but has yet to collect the other party's consideration, which is almost always money. After discussing the client's version of the facts the conversation will turn to what would happen once the case is over and we, hopefully, won.
I HAVE A JUDGMENT AND I'M SUPER-EXCITED, NOW WHAT?
You have a Judgment do you? Congratulations, now you have to collect off that Judgment because the Defendant that you just sued can make it difficult for you.
For starters, if you have a Judgment from a District Court or Superior Court matter (monetary jurisdictional limits can be found here) you must serve the other party in accordance with Rule 5 within three days of the Judgment being entered by the Judge. Service of Small Claims Judgments are to be handled by the Magistrate that presided over the matter.
Once service of the Judgment is established you must send the other party a Motion to Claim Exempt Property and Notice of Rights to Have Exemptions Designated (NORD). Service must be attempted by Sheriff's Deputy or Certified Mail first. Then, if the Motion to Claim Exempt Property and NORD is returned for non-service, simply send it again to the Defendant first class mail. You will also need to file a certificate of service letting the court know what transpired.
WHAT IS A MOTION TO CLAIM EXEMPT PROPERTY AND NOTICE OF RIGHTS TO HAVE EXEMPTIONS DESIGNATED (NORD)?
The motion to claim exempt property is a document that notifies the court that the Defendant (who has the judgment against him) is protecting certain property or interest in certain property from a Judgment holder. Some examples of items the Defendant can protect are:
- Interest in Real Property or burial plots up to $35,000
- Personal property and household items up to $5,000
- Interest in a motor vehicle up to $3,500
- Health care aids
- Life insurance policies
- Professional tools
- Retirement Accounts (IRAs, etc.)
The Notice of Rights to Have Exemptions Designated is essentially instructions on what the motion to claim exempt property is and how much time the Defendant has to respond to the motion, which is 20 days.
IT'S BEEN TWENTY DAYS AND THE MOTION TO CLAIM EXEMPT PROPERTY HAS NOT BEEN FILED BY THE DEFENDANT
Now do I get my money? You are definitely getting closer; however, you have to file what is called a Writ of Execution with the clerk's office in the county in which you have the judgment and send a couple copies to the Sheriff's office in the county in which you have the judgment.
From there the Sheriff's office will attempt to confiscate the Defendant's property in order to satisfy the amount of the Judgment (plus court costs and attorney's fees-if granted). In my experience, Sheriff's Deputies are very busy and you will have better success collecting off your Judgment if you provide the Sheriff's office with helpful information on the Defendant's assets. Cars are usually the best bet assuming they were not claimed as exempt.
I'VE HEARD THE TERM "JUDGMENT PROOF", WHAT IS THAT?
Judgment proof means that the party against whom you have a judgment has no assets that you can have the Sheriff's office seize. No phone, no lights, no motorcars, not a single luxury. Do not get completely discouraged though as you have some time to collect before that Judgment expires. Judgments last for ten years and can be extended for another ten years. While I say extended, a Plaintiff is technically filing a new action on a debt. In order for the Judgment to be in place for another ten year period (twenty years total), the Defendant has to be re-served with a new summons and new complaint (remember, it's a new action on a debt).
IS THERE ANYTHING I CAN DO TO FIND OUT IF THE DEFENDANT IS HIDING ASSETS?
Supplemental proceedings can, and often need, to be done to find out what assets a Defendant has. One of the more effective ways is to send the Defendant Interrogatories in Aid of Execution or to file a motion to allow an in person interview, under oath, of the Defendant to determine what assets he/she has.
The main thing to remember when you have a judgment is to periodically check in on the Defendant to see if he/she has acquired any assets that you may be able to have the Sheriff's office acquire and sell to satisfy the judgment. You will have to re-serve the Defendant with the aforementioned Motion to Claim Exempt Property and Notice of Rights to Have Exemptions Designated once the Writ of Execution is returned by the Sheriff's office unsatisfied.
*Remember, nothing in this blog post establishes an attorney-client relationship or should be construed to be legal advice.