Estate Planning Probate
After you win your lawsuit and obtain a judgment, the next step in your collections process is to enforce the judgment. The appropriate method of enforcing and collecting your judgment will vary depending on the facts of your particular case. However, there are some commonly used methods of enforcing your money judgment (or non-money judgments, as the case may be) against the judgment debtor. The discussion below highlights some of the concepts and procedures used in debt collection cases, focusing first on post-judgment remedies (remedies used after you obtain a court judgment) and then featuring a few prejudgment remedies.Post-Judgment Remedies
Writ of Execution
One of the most common means of enforcing money judgments is through a Writ of Execution. A Writ of Execution is a court ordered process in which a levying officer (marshal, sheriff or constable) is required to enforce the money judgment by levying on property. This may mean taking actual or constructive possession of the property. This procedure is commonly used with other types of debt enforcement, such as wage garnishments as discussed below.
The Writ of Execution has several advantages, including the following: 1) most property is subject to the execution, 2) the execution by a levying officer creates a lien, which will likely be advantageous in the event the debtor files bankruptcy, 3) thereafter, the property can be sold and the proceeds used to satisfy the judgment, and 4) may encourage a swift settlement by letting the debtor know that the creditor is serious.
Unlike a Judgment Lien, the creditor must identify the assets the debtor owns, specifically identifying the location and the type of property. Furthermore, there are exemptions which they may claim.Seizure, Levy Sale of Assets (Including Bank Levies)
A Writ of Execution also gives the creditor the ability to instruct a levying officer to take possession of certain property, levy upon it, and sell the assets to satisfy the judgment. There are numerous rules, exceptions and procedures that must be complied with; however this is a powerful remedy to collect your judgment. In addition, a creditor may obtain funds from the debtor’s bank account and safety deposit boxes. This is a powerful method of collecting money from a stubborn debtor.
After you have won your lawsuit, you can require the debtor’s employer to withhold certain amounts of the debtor’s earnings to satisfy your judgment. This method is commonly used for debt collection because it is relatively inexpensive and easy to implement. In addition, it may be the only means available to enforce a judgment when other property is exempt. There are protections for the debtor, however, that limit the amount of wage earnings that you can withhold.Writ of Possession
A Writ of Possession allows a levying officer to take possession of property in order to enforce a judgment where possession of the property is ordered. After the creditor has obtained a judgment, this remedy is often used to remove a person from the property in an unlawful detainer lawsuit.This writ is very powerful for landlords or homeowners to obtain possession of the property after default has been entered against the tenant. See also our Unlawful Detainer and Landlord-Tenant pages.Judgment Lien
When properly recorded, a judgment lien on real property establishes priority over other creditors that may be trying to obtain money from your judgment debtor as well. A judgment lien on real property is effectuated by obtaining and recording an abstract of judgment. This would allow you to attach your judgment onto all real property in the county in which the abstract is recorded. This method is relatively fast and inexpensive. A judgment lien on personal property can also be used. This can give you additional rights in the event that the debtor files bankruptcy.
Prejudgment RemediesWrit of Attachment
A Writ of Attachment is a remedy used before you actually obtain a default judgment. The main purpose of this remedy is to protect a debtor from transferring, encumbering, dissipating or concealing assets available to satisfy the judgments. However, this remedy is only temporary pending the outcome of the underlying claim and has some restrictions on availability.Temporary Protective Orders
Temporary Protective Orders (‘TPO”) are another method of preventing the debtor from transferring, encumbering, dissipating or concealing assets available to satisfy the judgments. A TPO is issued pending a hearing on whether a Writ of Attachment should be issued. Thus, this is a preliminary step to protect your rights to the assets while the court decides whether or not to grant a Writ of Attachment.Claim and Delivery
Claim and Delivery is another provisional remedy that allows the creditor in action to recover specific, tangible personal property in the defendant's possession. This allows for a quick and swift recovery of the claimed property prior to the completion of the lawsuit. In addition, simply filing an action for recovery of possession of the property may get the defendant’s attention and result in a settlement. On the other hand, if you do not win the lawsuit, you may be liable for damages because you wrongfully possessed the property.
This is an ancillary and equitable remedy in which a court appoints a representative to take possession of or manage the property to preserve and protect it pending an outcome of the lawsuit. Receiverships are often expensive and not favored by the courts. Receiverships are often the most difficult provisional remedy to obtain because of the cost and expense of administration. in such a case, courts often appoint receivers to run the business of a partnership that is being “wound up” (i.e. going to dissolve).