Dealing with Uncooperative Debtors

Dear [NAME],

Thank you for your message. We are happy to help as best we can.

Unfortunately, even if the clerk-magistrate has found in your favor, dealing with opposing parties who are uncooperative when it comes to complying with the judgement order is very common.

When a clerk-magistrate finds in your favor and rules that you are entitled to damages, you are then referred to as the “judgement creditor” and the opposing party is referred to as the “judgement debtor.” Here are some of options which you have available to you for dealing with an “uncooperative debtor”:

A Capias
If a debtor does not appear at the payment hearing, then a “capias” may be immediately issued, which is merely a notice which threatens to arrest the debtor if they do not appear in court. A capias, however, is only a threatening order and does not take physical steps towards obtaining the requisite compensation from the debtor.

Additional options which take actual action against the debtor are as follows:

1.     Obtain a Write of Execution
A Writ of Execution is an attempt to levy some part of the debtor’s property against them in order to compel them to pay. It is issued 15 business days after the date of judgment at the request of the plaintiff. A Writ of Execution could target property of the debtor such as: money in a bank account, personal property, motor vehicles, etc.

Knowing the location of a certain asset of the debtor is very helpful. Once the court has granted a writ of execution to levy a specific piece of the debtor’s property:

1.    The creditor must bring this writ to a “levying officer,” such as a sheriff

2.    The creditor must also give the constable/sheriff information on the location of the assets to be levied.

3.    The constable/sheriff must then serve, in person, the writ of execution to the debtor and collect the property specified in the writ. This property will be kept in the sheriff/constable’s safekeeping for a period of time.

4.    If the debtor does not file a “claim of exemption,” then the sheriff will either turn the money directly over to the creditor (if the levied asset was cash) or sell the assets (i.e. a car) and return the proceeds to the creditor.

Keep in mind that the Financial Statement filed by the debtor prior to the payment hearing has a space for their bank account number, which could be helpful information.

2.     Obtain a Wage Garnishment
A Wage Garnishment allows a creditor to collect the ordered payment by taking the owed money director out of the debtor’s wages. In order to execute a Wage Garnishment, the creditor must:

1.     Obtain a Writ of Execution (as explained above).

2.     File an Application and Order for Wage Garnishment (ask Clerk for details), which is directed to the debtor’s employer and orders thehm to withhold a portion of the debtor’s wages (usually no more than 25%) and pay this amount to the creditor.

3.     Have the Order for Wage Garnishment “served” upon the debtor’s employer by a sheriff or other court officer.

Keep in mind that in order to obtain a Wage Garnishment, the creditor must know the name and location of the debtor’s employer, and, again, that information may be listed on the debtor’s Financial Statement.

3.     Place a Lien Against Debtor Real Estate Property
Placing a lien on a debtor’s real estate property means that that whenever the debtor sells or refinances that land or property, the creditor will automatically be paid from the proceeds of that transaction. To create the lien, the creditor must record the judgement with the land records office in the county of the debtor’s property.

When the debtor attempts to sell or refinance the property, the buyer will be notified of the lien, and the credtior will be paid from the proceeds of the transaction.

'''Although it can be done, it is expensive to force the immediate sale of the debtor’s land property. For this reason, liens are rarely used.'''