It’s the Law: Can I force someone to pay me when court said they should?

Q: I sued someone and got a judgment that states the defendant owes me thousands of dollars. He has not paid me. How can I force him to pay the judgment?

A: Pursuing a claim to judgment does not equal payment. When considering suit, two factors need to be reviewed. First, the case should be analyzed for strengths and weaknesses. Second, the likelihood of collecting on the judgment should be reviewed. If your case does not look positive from both criteria, it may not be a good financial decision to pursue it.

Your case overcame the first hurdle. It was good enough to obtain a judgment against the defendant. You now need to overcome the second hurdle to be successful.

One of the problems in Florida affecting judgment collection is that many assets are exempt from creditor claims. Exempt property includes homestead property of the defendant. That usually means you cannot enforce a judgment against someone’s home. Wages of the head of a family are exempt. Other exemptions include life insurance proceeds and cash surrender value, annuities, disability income and most retirement accounts.

In addition to exemptions under Florida law, some property is immune from creditor claims. That includes property owned jointly by a husband and wife as a tenancy by the entireties, where the judgment is only against one owner. Property owned jointly with non-spouses might be reached by a creditor, although the cost of enforcing the judgment against the property may exceed the value of the partial interest owned by the debtor. This is particularly true when the property has a large mortgage.

Assuming your judgment debtor has assets that might be available to satisfy your judgment, you will need to pursue further action. First, you should “perfect” a judgment so that it is a lien. For real property, you need to record a certified copy of the judgment in the county where the real property is located and the judgment needs to have the address of the judgment holder. Perfecting a judgment against real property makes it a lien against the property and by proper judicial action you can force the property to be sold to satisfy the judgment.

For personal property, you can perfect a lien by filing a judgment lien certificate with the Florida Department of State. That gives you a lien, but does not force payment. For personal property most judgment creditors pursue what is known as a writ of execution, under which proper documents are filed so that through coordination with the Sheriff’s office personal property of a debtor can be taken and sold.

Bank accounts and money owed to a judgment debtor can be reached through a process called garnishment. Garnishment is a judicial proceeding in which a writ is issued ordering someone owing the judgment debtor money to pay the judgment holder instead of the judgment debtor.

It can be difficult to locate assets. Debtors can place assets in the name of family members or friends. That is generally considered a fraudulent transfer, and if it is proven the transferred asset can be available for collection. Property can be held in a trust, a corporation or company name. Although there are methods to uncover hidden assets, an experienced debtor can often stay one step ahead of creditors for a long time.

Obtaining a judgment is a good first step. Collecting it can be difficult. Most judgment collection procedures are technical and many are complex. I suggest you retain an experienced attorney to explore options and expense of further collection effort.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@embarqmail.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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