Wednesday, April 6, 2011

Virginia - Collecting Your Judgements

Some info on collecting money on your judgments from deadbeat tenants.

Written by . Original article click here.

Your hard work and determination finally paid off. You won the case you filed in the Virginia small claims court! The judge agreed with you, and the defendant's been ordered to pay what he owes you, or to return or give you some personal property that he's been holding. You're to be congratulated.

However, just because you won doesn't necessarily mean you're going to get paid or that your work is over. It may not be time to relax yet. If you're lucky, the defendant will voluntarily do what the judge ordered when he made the decision. Unfortunately, this doesn't happen in every case. Often, the defendant tries to avoid paying or simply ignores the judge's decision (called the "judgment"). You have some options when this happens, however, such as:
    •    Getting a writ of fieri facias against his personal property
    •    Garnishing the defendant's wages and other money
    •    Having a lien placed against the defendant's real property

The Names Have Changed
When the suit was filed in the small claims court, you were called the "plaintiff," the person who filed the suit, and the person you sued was called the "defendant." Now that the case is over and you've won, you're now known as the judgment creditor and the defendant is called the judgment debtor.

Collection Tactics
After the judge decides the case and the court clerk enters the judgment into the court record, the first thing you should do is talk to the defendant. See if she can pay you immediately, or try to arrange a payment schedule. If the defendant doesn't pay you, there are a few ways that the court can help you collect on the judgment.

Writ of Fieri Facias
Also know as "executing judgment," a writ of fieri facias is when you take (or "levy") some of the debtor's property or assets to pay what he owes. You need to file an application or "petition" with the clerk to get this writ, and you have to be able to specify what you want levied and where it's located.

Once you've been granted a writ it has to be delivered to (or "served on") the defendant-debtor, usually by the sheriff of the county where the defendant lives or where the property is located. After the writ's been served, the sheriff (click here) may take the items listed in the writ, and unless the defendant claims that the property is "exempt," meaning that it can't be taken because it's protected by law, the deputy will sell the property and arrange for you to get the sales proceeds.

With a writ of fieri facias, you can usually get to some of the defendant-debtor's personal property, such as jewelry, art, cars and boats. Exempt property (click here for exempt property) that usually can't be reached through the writ includes the debtor's homestead real estate (that is, his house), household items, like appliances, up to a certain value, and family pets.

This writ may also be used if the debtor refuses to give you or to return specific items of property, known as personal property, as ordered by the court in its judgment. The sheriff will take the property that you sued for from the debtor and arrange for it to be delivered to you.
The clerk of the district court (click here for the district court) where the small claims case was filed can give the forms needed for the writ and can tell you the fees and other costs you have to pay to get and use the writ.

Garnishment is when you arrange for money to be taken directly out of the debtor's paycheck (or from his bank accounts, which is a little less common). Here, you have to complete and file a Garnishment Summons (click here for a garnishment summons). Once you've been granted a writ of garnishment, it has to be served on the debtor and his employer (or the debtor's bank). The employer will then withhold some of the defendant-debtor's wages, usually no more than 25% of his net weekly pay, and then arrange for it to be paid over to you.
Again, you have to pay filing fees and a fee for having the writ served by the sheriff. The court clerk can tell you the current fee amounts.

Lien on Real Property
Filing a lien against a debtor's real property will prevent him from selling or even refinancing it without having to pay you. To make this work, you need to take an abstract of judgment and file it with the clerk of the circuit court (click here for your circuit court) for the county where the defendant-debtor owns property. You can do this in any county in Virginia where he owns property. The clerk of the district court where you filed the suit can help you get an abstract of judgment, and he can tell the fee amounts for getting one and filing it with the circuit court.

Get Information
It's your responsibility to get information about where the debtor works and where his property and bank accounts are located. Without it you can't ask the court for writs of fieri facias or garnishment, and you can't place a lien on his land. If you don't know this information, you may ask the court to send the defendant-debtor a Summons to Answer Interrogatories (click here for the summons), which will require him to answer questions about his property and assets.

There are fees for filing this summons and for having it served on the debtor. The court clerk can tell you about these fees.

Satisfaction of Judgment
Once the defendant-debtor has paid you in full (or has "satisfied the judgment"), you have to file a Notice of Satisfaction of Judgment (click here for the notice of satisfaction) within 30 days of the payment. If you don't do this, the defendant-debtor may file a Motion for Judgment to be Marked Satisfied (click here for the motion they would file), and you could be ordered to pay his costs and attorney's fees for filing this motion.


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