idol said:
I recently won a small claims case in California (SF Bay Area)and would like to know how I can collect the money. I know I'll need to get a "writ of execution," but how do I use it? Also, I read that I can not collect until a time period for appeals. How long is that?
My response:
The case is over once a court enters its judgment, and now you want to collect your money.
As you have discovered, collection of a judgment is totally the responsibility of you, the judgment creditor. Collecting a judgment is the most frustrating part of the small claims process. Having a judgment does not guarantee payment. However, there is no right to demand payment without a judgment. A judgment debtor may be without assets, "judgment proof," or be uncooperative, causing extra effort and costs. One should never assume that just because you possess a judgment that the debtor will quickly and voluntarily pay that judgment. In the real world, collection on a judgment can be time-consuming and sometimes not very successful.
Many people mistakenly believe that the court will take care of the collection of the judgment. That, unfortunately is not the case. The court will not collect the award for the judgment creditor. The extent of the court's involvement in collection is to supply the orders and documents needed to help collect the judgment. Often, in order to collect a judgment, a judgment creditor turns to a collection agency.
In California, for example, a judgment creditor must normally wait 10 days before collection efforts begin because, during those 10 days, the judgment debtor (Defendant or Cross-Defendant) can file an Appeal, and the litigation of the case starts fresh, before a new judge - - and this time, with attorneys if the litigants choose to have attorneys.
Assuming the 10 days has elapsed, and you wish collection attempts to begin because the Defendant is failing to pay, you'll need to obtain the Writ of Attachment forms from the Clerk's office at the courthouse.
In order to "attach" an asset for seizure or sale, you need to know what assets of the judgment debtor are available, where those assets are, and to make absolutely sure the judgment debtor owns those assets. If you attach assets that you "thought" belonged to the judgment debtor, and were wrong, you could be in a world of trouble.
Once you have properly identified the assets (such as bank accounts or cars or whatever), their whereabouts, and their true ownership, fill out the attachment papers. Give your papers to the Sheriff's office for service on the Defendant and immediate seizure of the assets.
This process is costly, and all fees for Attachment must be paid by you, up front. However, all such fees are added to the judgment. So, for example, if you attach the judgment debtor's bank account, the principle amount of the judgment will be taken, plus an amount equal to your costs and fees, and handed over to you after an accounting is completed by the Sheriff's office.
If you have tangible goods attached, like cars, boats, etc., such property will be taken by the Sheriff and auctioned to satisfy your judgment. Again, all costs will be paid by you up front, and returned to you upon the sale of the property. Any amount above your judgment and costs will then be turned over to the judgment debtor.
Now, here's the kicker.
You've just learned a whole bunch about this process, but you didn't need to - - although it was fun to write (remember, there are other people learning by reading this post too).
All you need to do is call an "Attorney Service" to do all of the asset searches, forms filling, and service of those papers. All you do is pay for the fees and costs involved. Remember, you get those back if the assets seized are sufficient for reimbursement.
So, where to you find an "Attorney Service"?
All you need to do is call a law office near you for a referral to their Attorney Service. The firm will give you the number, and you go from there.
Good luck to you.
IAAL
