Post Judgment, Civil Bench Trials
The party awarded the judgment is referred to as the judgment creditor. The party owing the judgment is referred to as the judgment debtor. The prevailing party in a case, or the judgment creditor, is responsible for collecting the awarded judgment; the court will not collect the judgment. There are several options that may be utilized. Judgments entered on or after October 1, 2001, are good for 10 years. Most judgments can gain interest at 10% per annum beginning with the date of the entry of judgment. After the entirety of the judgment is collected a Satisfaction of Judgment must be filed by the judgment creditor with the clerk of the Justice Court. If the person who owes money (the judgment debtor) refuses to pay, the judgment creditor may choose to employ one or more of the following methods to attempt collection of your judgment:
Garnish the Debtor’s Wages
A wage garnishment orders the debtor’s employer to give the creditor part of the debtor’s wages until the debt is paid. Federal and state law places limits upon the amount of earnings subject to garnishment. To garnish wages, the creditor may request that the judge issue a Writ of Execution. The name and address of the debtor’s employer must be included on the form. Interest (if awarded in judgment) must also be correctly calculated. Once the writ is issued, it must be served. The creditor cannot serve the writ of execution themselves. It must be served by the sheriff’s office or a private levying officer. A writ of execution remains in effect for 120 days from the date of receipt by the sheriff or levying officer and may be served multiple times until it expires. If the writ is returned unsatisfied or partially unsatisfied a new writ of execution may be issued for the remaining balance together with costs and interest.
Levy upon the Debtor’s Bank Account
A writ of execution is the instrument used to levy a judgment debtor’s bank account. By placing a levy on a bank account, money will be withdrawn directly from the debtor’s bank account to pay the judgment. The creditor must include the name, address, and branch of the bank on the writ of execution. Interest (if awarded in judgment) must also be correctly calculated. Once the writ is issued, it must be served. The writ of execution cannot be served by the creditor. It must be served by the sheriff’s office or a private levying officer. A writ of execution remains in effect for120 days from the date of receipt by the sheriff or levying officer and may be served multiple times until it expires. If the writ is returned unsatisfied or partially unsatisfied a new writ of execution may be issued for the remaining balance together with costs and interest.
File a Certification of Transcript of Judgment with the District Court
Filing a Certification of Transcript of Judgment with the District Court puts a judgment lien on any land, house, or other building the debtor owns in the county where the transcript is filed. File the transcript in all counties where the debtor may own property. If the property is sold, the debt will be paid out of the proceeds of the sale. The judgment lien is good for six (6) years. The judgment lien will also put a lien on property the debtor may buy in the future and prevent the debtor from refinancing any property until the debt is paid.
Levy upon the Debtor’s Personal Property
To levy upon the personal property of the judgment debtor, complete a writ of execution and file it with the Justice Court Civil Clerk for issuance. On the writ, the creditor will need to describe the personal property to be levied upon. Once issued, take it to the sheriff or levying officer. Some personal property is exempt from execution, i.e., one motor vehicle not to exceed $1,200.00 and household furnishings not to exceed $4,500.00 in aggregate value, no item to exceed $600.00 in value. There are other exemptions- see M.C.A. Title 25, Chapter 13. If the judgment debtor used the property to secure a loan or to purchase the property, the security lien of the bank or finance company must be paid before any moneys from the execution will be applied to your judgment.
If the debtor is a business with a cash register, the sheriff or levying officer can go to the business and take enough money out of the register to satisfy the judgment and their fees. The creditor will need to know the name and address of the debtor’s business to complete the writ of execution. Once filed and issued, take the writ to the Civil Sheriff or levying officer. If there isn’t enough money in the register to pay the judgment, the sheriff or levying officer can attempt to tap the till again. A fee is assessed for each attempt.
Hold a Debtor’s Hearing
A Debtor’s Hearing requires the debtor to come to court and answer the creditor’s questions about his/her salary, bank accounts, property, and anything else that could be used to pay the judgment. This can only be done after at least one attempt has been made to collect the debt with a writ of execution. Complete and file a motion with the court requesting a Debtor’s Hearing. Bank books, paycheck stubs, records, etc. can be subpoenaed. A subpoena duces tecum listing any specific items or records that the creditor would like the debtor to bring to the hearing must be filed by the creditor and signed by the Judge. When the order setting a Debtor’s Hearing and the subpoena duces tecum are signed, they must be taken to the Civil Sheriff or levying officer to be served upon the debtor. If the debtor has been served and fails to appear at the Debtor’s Hearing a warrant may be issued for their arrest for contempt.