Collections is the process by which an individual who has been awarded damages in Small Claims Court actually gets the monies that are owed to them.
After a clerk-magistrate has made a decision about a case, the person to whom money is owed is called the judgment creditor while the individual who owes money is called the judgment debtor. It is important to not confuse these terms with plaintiff and defendant, since a defendant can counter-sue for money, win their case, and consequentially be the judgment creditor. While in the collections process, the terms plaintiff and defendant are no longer used.
Notice of Judgment and Order Form
The Notice of Judgment and Order Form, which is mailed to both parties once the clerk- magistrate reaches a decision, will include the following:
- An indication of whether or not the clerk-magistrate found the defendant liable for the plaintiff’s damages (i.e. did the plaintiff win?)
- An exact amount of money that the defendant must pay to the plaintiff within 30 days of the date of judgment, unless a previous payment plan has been worked out.
- A court date (ordinarily scheduled for approximately one month after the date of judgment) for the payment hearing (explained below). If the clerk-magistrate renders decision immediately on the trial date, however, the payment hearing will commence on that same date.Unless the plaintiff waives the hearing or the defendant decides to appeal the decision, both parties are expected to appear in court.
Prior to the Payment Hearing, the judgment debtor (hereafter called “the debtor”) must either pay the entire amount of the judgment to the judgment creditor OR complete a written Financial Statement.
The Financial Statement
The Financial Statement form asks the debtor to detail their income and assets as well as other pertinent financial information.The Financial Statement must be completed prior to the scheduled payment hearing and a copy must be provided to the creditor before this date, as well. Although the Financial Statement will be kept separate from other case paperwork (i.e. it will not be made part of the public record), it will be accessible by the court, all parties to the case, and any attorneys that have officially become involved in the case. The Statement must be signed as “true” by the debtor. Providing inaccurate or false information will be punished by penalty of perjury.
At a Payment Hearing held on the original trial date, the presiding official will first ask the debtor if they wish to appeal the decision. If the debtor wishes to appeal, the payment hearing will not be conducted. Otherwise, the clerk-magistrate will issue a payment order for the amount of the judgment plus allowable costs, and this order will require payment by a definite date or on a definite schedule.
If the payment hearing is scheduled for after the trial date, the clerk-magistrate will have already issued a payment order along with the Notice for Judgment. In that case, the debtor had three potential responses:
- Appeal the decision within ten days of receipt of the Notice of Judgment. The payment hearing is then canceled.
- Pay the plaintiff the entire amount owed. The plaintiff and defendant must together fill out a court-provided form and file it with the court indicating that the defendant has paid. The payment hearing is then canceled.
- Appear at the payment hearing. The defendant will have to file the Financial Statement with the court and fulfill the burden of explaining why they have not yet paid the entire amount owed.
Judgment Proof Status
Judgment debtors often claim that they are too impoverished to pay, but usually the court official disagrees and makes them pay something (even if it’s only $5 or $10 a month). The judge may devise a gradual payment plan for the debtor. Although a clerk-magistrate or a judge may preside over a payment hearing, only judges can actually order incarceration, or another measure deemed appropriate, for non-payment or for failure to appear at the hearing (civil contempt). Clerk-magistrates cannot, and even judges tend to exercise this power quite infrequently.
Inability to Pay is somewhat common in small claims court. On occasion the court will find that the judgment debtor is financially unable to pay their sentence. These people are often informally called judgment proof. Because judgment proof status is ultimately the judge’s decision, it is often hard to accurately predict who will qualify. Here are some general guidelines, though:
- Those that are exempt from paying state taxes would probably be deemed unable to pay outstanding judgments.
- Bankrupt individuals are probably not expected to pay immediately.
- Payments from public assistance or benefits programs are exempt from small claims payment orders and thus, are not collectable income:
- Massachusetts Aid to Families with Dependent Children (AFDC)
- General Relief program
- Veteran’s Benefits program
- Social Security benefits
- Supplemental Security Income (SSI) benefits
- Welfare benefits (any benefits paid by MA Dept of transitional assistance)
- Railroad retirement benefits
- Income from most ERISA-backed pensions
- Medicaid program
- Income from unemployment insurance
- Worker's compensation
- People who earn about $10,000 or less annually are at the poverty level and might be considered judgment proof. The amount of income required for poverty level designation also changes according to other factors, such as the number of dependents a wage-earner has.
- If you have $1000 or more in the bank that does not fall into the aforementioned categories and/or you own property, you will not be considered judgment proof.
The judgment proof status is not permanent. How long a judgment extension will be is for the judge to decide (but the extension is usually about a year). Younger people are more likely to get called back into court than older people, because the assumption is that younger people will have more of an opportunity to bounce back. At the end of this time period, the judgment debtor is called again to court either to explain again why they have not paid damages or to prove to the judge that they still cannot pay. These payment reviews and hearings will continue until the debtor pays damages or until the court official does not think that they qualify for judgment proof status anymore. The judgment creditor can only request these reviews and hearings once a year for up to 20 years.
Non-Appearing Judgment Debtors
Non-Appearing Judgment Debtors are also common when it comes to payment hearings. If a debtor fails to show up on the date designated for the payment hearing, and the creditor does show up (and signs a sworn statement that payment by the debtor has not yet been made), then a capias may be immediately issued. A capias is a notice threatening arrest if the debtor does not appear in court. The cost of a capias is usually $20-$30 and is sometimes added to the judgment amount that must be paid by the debtor. The creditor can also pay a constable or sheriff to physically arrest and bring the debtor into court to explain why they have not paid. The fee paid by the creditor for such an arrest is $100-$300, and may or may not be added onto the judgment amount that must be paid by the debtor.
Extracting Money From Non-Cooperative Debtors
Often none of the above “threatening mechanisms” will work, and the plaintiff (if they still wish to collect their money) may have to take additional (sometimes costly and inconvenient) steps in order to do so. Some of their options are discussed below.
Obtain a Writ of Execution
Obtaining a Writ of Execution is an attempt to levy some part of the debtor’s property and is issued 15 business days after the date of judgment at the request of the plaintiff. Some examples of property that can ordinarily be levied in this way are:
- Money in a bank account
- Personal Property
- Motor Vehicles owned by the debtor
- Money that is inherited from friends and relatives
- Retirement funds
If a creditor knows the location of any of these assets (or may be able to find out their location), then requesting a writ of execution from the court is often very helpful. Once a writ of execution (specifying the property to be levied) is granted:
- The creditor must bring this writ to a constable, sheriff or other “levying officer.”
- The creditor must also give the constable/sheriff information on the location of the assets to be levied.
- 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.
- If the debtor does not file a “claim of exemption” (which they are entitled to do), then the sheriff will either turn the money directly over to the creditor (in the case of cash assets) or sell the assets (i.e. a car) and return the proceeds to the creditor.
The Financial Statement that debtors are required to fill out prior to the payment hearing has a space in which the name of the debtor’s bank (and their account number) is requested. Creditors should make note of this information, and verify that it is correct, as knowing this information may make the above procedure possible.
Obtain a Wage Garnishment
Obtaining a Wage Garnishment allows a creditor to collect their judgment by taking the owed money directly out of the debtor’s wages. In order to “garnish someone’s wages”, a creditor must:
- Obtain a Writ of Execution (as explained above).
- Obtain an Application and Order for Wage Garnishment (ask Clerk for details), which is directed to the debtor’s employer and orders this individual/company to withhold a portion of the debtor’s wages (usually no more than 25%) and pay this amount to the creditor.
- Have the Order for Wage Garnishment “served” upon the debtor’s employer by a sheriff/constable.
Again, the creditor must know the name and location of the debtor’s employer. This information can be found on the Financial Statement filed by the debtor before the payment hearing.
Put a Lien on a Property
Putting a lien on the debtor’s property entitles a creditor to automatically collect the amount of their judgment from the proceeds that result when that piece of property is sold. In order to create a lien on the debtor’s property, the creditor must record the judgment with the land records office in the county in which the property is located. When the debtor sells or refinances the property, the buyer will see the lien, and the creditor will be paid out of the proceeds. (*Note: It is possible to “execute on the lien,” forcing the sale of the property immediately. However, this is expensive and usually requires the assistance of a lawyer. For these reasons a lien is rarely used).
The resources listed above (capias, writ of execution, wage garnishment, lien on property) only apply to judgement debtors within Massachusetts. If a plaintiff wins a claim against an out-of-state defendant, then a major resource for them may be to file a "sister-state judgement" in the defendant's state, which provides recognition of the judgement even in the defendant's state and allows the creditor to collect through the court system of the defendant's state.
- Standards of Judicial Practice 7:03
- Standards of Judicial Practice 7:04.
- Uniform Small Claims Rules, Rule 7(g).
- Uniform Small Claims Rules, Rules 7(g) and 9(c).
- Standards of Judicial Practice 7:03.
- Standards of Judicial Practice 7:04.
- Uniform Small Claims Rules, Rule 9.
- M.G.L. c. 151a, § 48
- M.G.L. c 152
- Standards of Judicial Practice 7:04.
- Uniform Small Claims Rules, Rule 7(g).
- Standards of Judicial Practice 9:05.
- How Do I Execute and Levy Against Property Owned By a Judgment Debtor, Law.Freeadvice.com.
- Financial Statement, Massachusetts Small Claims Forms.
- Collect Your Court Judgment From Deposit Accounts, Nolo.com Law Encyclopedia.
- Collect Your Court Judgment With a Wage Garnishment, Nolo.com Law Encyclopedia.