Anatomy of a Case

After Trial

Collection

Winning your case in court is often only 10% of the problem in recovering your money. It may surprise you to learn that many people, even after losing in court and being ordered to pay another person some money, still do not pay. The judgment, or the judge's order to pay, is often useless unless you can find the property belonging to the defendant and attach it, or force a sale of these items and a distribution of the proceeds to you in satisfaction of your judgment.

Winning At Trial and Obtaining a Judgment. Assuming the case is over and you are the winner, the first thing you must realize is that it is up to the winner to make all of the efforts to collect the money owed. [If you are the loser, this information can still help you avoid paying the winner.] You become the person entitled to a judgment. A judgment is really nothing more than a court order to a Defendant(s) to pay some amount to the Plaintiff. However, this is very significant. A judgment means a court has ordered a person to pay a sum of money, and this sum will be specified in the judge's order.

If the loser does not pay after court, and refuses to pay or to take phone calls after court, you or your attorney, if he/she is still being retained, should write a stern but not threatening letter requesting payment. This usually will not work, but it must be done in most cases anyway.

You should check the court rules to see how long you must wait after the judgment is entered by the court, before you can begin to collect the money by means other than phone calls and letters. Also, the court rules will state which methods you can legally use to collect your money. For example, in many states you cannot garnish a person's wages. Garnish means to force the employer, by court order, to withhold a portion of a person's paycheck [usually up to 25%, although many states have a large number of exemptions which may limit the amount you can garnish.]

If you do not wish to undertake this collection process yourself, you can hire an attorney to collect this fee, or you might call a collection agency, but these agencies often take up to 50% of the money they collect as their fee. Or if you pay them by the hour, the hourly fees may cost substantially more than the judgment.

We will assume that you wish to collect this money on your own. First, if you know where the loser banks, you can use your judgment to levy on his/her bank account. If you wish to levy on a bank account, you must usually use the sheriff or marshal, and they charge a fee. Also, you must make certain that your judgment exactly matches the name on the bank account, or the bank may refuse to withhold the money or levy the account. You are responsible for finding the bank accounts, at your cost. The marshal or the sheriff will usually only levy once the accounts are located.

Also, you can search for other assets of a loser, such as motor vehicles with equity, receipts of a business, real property [although there are many restrictions by state on attaching real property in which the defendant resides.]

Levying on a loser's wages or a pension requires that you obtain a document from the court sometimes known as a Writ of Execution or Notice to Judgment Debtor. You need to check the law of the state in which the judgment was entered to find this document and obtain it. This is the document used to alert the Marshal, Constable, Sheriff or other officer of law that you intend to garnish a person's wages, pension or other assets, such as a bank account(s).

If you locate personal property owned by the defendant, or even if you suspect that he/she owns personal property, you can obtain a document which can be completed and filed with the local county recorder's office. This is sometimes called an Abstract of Judgment. What this document does is preclude the sale of property owned by the loser until your judgment is paid. Again, this is an oversimplification of the process, but it may be available to you. Of course, you have to wait until the property is sold or transferred, but it is often one of the best ways to be sure you are paid.

Finally, if the only assets a person has is an operating business, you might be able to force the business to operate under a receivership, until you are paid. If this is necessary, you should contact your Plan Attorney. Now you can see why winning is often only 10% of the battle.

After Trial
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