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07 Sep 2014

ENFORCING YOUR JUDGMENT – HOW DO YOU COLLECT?

Suppose you’ve sued someone, you’ve won the trial and the judge has ordered the person you sued, now called the judgment debtor, to pay damages to you. What happens next? How do you get the money you are owed?

 

It’s important to understand that the Court will not enforce a judgment for you. After the judge has declared that you are owed damages, it becomes your responsibility to collect the amount owed.

GARNISHMENT

There are a number of methods through which you may collect on your judgment. One method is garnishment. This involves redirecting money owed to the judgment debtor to yourself, the judgment creditor.

If the judgment debtor is employed, he or she should is usually paid a salary by his or her employer. As a judgment debtor, you may send the employer a Notice of Garnishment that imposes a legal obligation upon the employer to pay a maximum of 20% a portion of the judgment debtor’s wages per pay period to you. The reason for the maximum is that, the law recognizes that the judgment debtor requires a certain amount of money to live on, therefore you can only garnish a portion of the judgment debtor’s wages, rather than the entire amount.

If the judgment debtor has a bank account, the judgment debtor is owed the amount which is in the account by the bank. You can therefore submit a Notice of Garnishment on the bank and require that this amount be paid to you.

If the judgment debtor is a business, it likely has customers who owe outstanding amounts. These amounts can also be garnished.

WRIT OF SEIZURE AND SALE

Another means of enforcing a judgment is by seizing property owned by the judgment debtor. Since the main asset many of us own is our home, this is often the best means of enforcing a judgment. You can also seize and sell personal property (ie. property that is not land) such as motor vehicles.

In order to seize property, you must have a document called a Writ of Seizure and Sale issued by the Court. You must wait six months after doing so before you can force the sale of land owned by the judgment debtor. It’s important to keep in mind that you will only be able to recover the interest which the judgment debtor owns in the land. For example, if the judgment debtor owns a home worth $500,000, but which has an outstanding mortgage of $450,000, you will only recover $50,000 from the sale, less the expenses relating to the sale.

Both Notices of Garnishment and Writs of Seizure and Sale must be issued by the Court within six years of the judgment and remain in force for six years after they are issued. To enforce your judgment outside of these timelines, you must obtain permission from the Court.

EXAMINATION IN AID OF EXECUTION

A critical factor in enforcing your judgment is obtaining information about the nature and location of the assets the judgment debtor owes. You must determine who the judgment debtor’s employer is, whether the judgment debtor owns a home, and where this home is located. In some cases, you may know the judgment debtor personally and already have this information. If not however, you can compel the judgment debtor to attend an examination in aid of execution. An examination in aid of execution is an opportunity for you to question the judgment debtor, under oath, about his or her assets. The information you obtain can then be used to enforce the judgment. If the judgment debtor refuses to attend an examination in aid of execution or to answer the questions asked, he or she may be in contempt of court and could be imprisoned as a result.

Enforcing a judgment can be problematic process and in some cases can be more difficult than actually succeeding at trial. If you have obtained a judgment but require assistance in successfully enforcing it, please feel free to give us a call and we’d be happy to discuss your options.

Read 1628 times Last modified on Tuesday, 14 October 2014 21:04
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