Collection Problems and Special Situations
When you try to collect your judgment, you may run into problems. Click on the topic below that relates to your problem for more information:
The debtor is supposed to pay you in installments but has stopped paying (or never paid) the installments
If the court gave the debtor permission to pay you in installments (a payment plan) and the debtor stopped paying you, is paying you late, or never paid you, you can ask the court that the payment plan be canceled and that the entire balance become due. Basically, you are telling the court that the debtor is in default and the payment plan should be canceled so you can collect on the entire balance right away.
To do this:
- Fill out a Declaration of Default in Payment of Judgment (Form SC-223).
Make sure you read page 2 of Form SC-223 before you fill out the first page. It gives you (and the debtor) information on the process. And it tells you how to calculate the interest on the payments the debtor owes you.
- If there is more than one debtor in this case, fill out a Form SC-223 for each debtor that has failed to make an installment payment.
- File your form with the court clerk.
- The court will mail any other parties in the case a copy of your Declaration of Default in Payment of Judgment (Form SC-223) plus a blank Response to Declaration of Default in Payment of Judgment (Form SC-224) for the debtor to use if he or she wants to respond to your Declaration.
- The debtor has 10 days to file the Response to Declaration of Default in Payment of Judgment (Form SC-224).
- The court will then mail all the parties in the case (including you) an Order on Declaration of Default in Payments (Form SC-225) which will have:
- A decision on whether or not to end the payment plan and have the full balance become due right away, or
- A notice to go to a court hearing to hear both sides in person and make a decision then.
- If the court's decision is that the full balance is due now, you can start collecting on the full amount. Click to find out how you can collect the judgment.
- If the court sends you a notice for a court hearing, make sure you go to the court hearing. If you have any proof of late or missed payments, bring that with you.
Your judgment does not state the debtor's correct name
Usually, your small claims judgment must use the correct name of the person or business that owes you money. If not, you may not be able to collect your judgment.
The law says that you (the plaintiff) may request the court to amend (change) the judgment to include both the correct legal name and any names actually used by the defendant. Check out Code of Civil Procedure section 116.560(b).
If the defendant's correct name is different from what is written on the judgment, you can ask the court for a new judgment with the correct name.
You may need to ask the court to "correct" a judgment if:
- The name on the judgment is not spelled correctly;
- The name on the judgment is a maiden name, and the debtor has a new married name (or the judgment has a married name when the debtor has gone back to using a maiden name);
- The first name is listed as the last name because of a clerical error;
- There has been a legal change of name (other than through marriage);
- The debtor routinely uses a different name (an alias or pen name) and has assets in that name; or
- Your judgment lists the business name but not the debtor's personal name, and the business is owned by the debtor as a sole proprietor. You will NOT be able to have the judgment changed to name an officer or employee of the business.
A judge will probably deny a request to "correct" a judgment that asks to:
- Name a spouse or domestic partner that was not a named defendant in the original claim; or
- Name a different entity or person than the one originally sued (for example, a business partner you did not know about).
These cases are more complicated. The judge will probably only correct or "amend" the judgment if the interests of justice are served and the business partner, spouse, or domestic partner was in court on the day of the hearing and defended the case.
Changing the name on the judgment when there is NO clerical error
To change the name on your judgment for any reason other than to correct a clerical error, first check with your local court to see if they have a local form that you must use to make your request. If not, you should use the Request for Court Order and Answer (Small Claims) (Form SC-105).
Here is how:
- Fill out a Request for Court Order and Answer (Form SC-105).
- Indicate that you are asking for an order to change the judgment to reflect the debtor's true name.
- When you fill in the request part of the form:
- Say whether you are the plaintiff or the defendant that won a defendant's claim.
- Explain why you want to change the name on the judgment, that you have a good reason for the proposed change, and that the change will support the interests of justice. If there is not enough room on the form, attach a longer explanation on a sheet of paper (or use Form MC-031, Attached Declaration).
- If you have documents that support your request, say that "exhibits are attached" and attach those papers to your form. Make sure to explain why your attachments prove that the name should be changed.
- File Form SC-105 (and any attachments) with the small claims court clerk. The clerk will put a hearing date on the form. Keep an extra copy of the filed request for your records. You will have to pay a fee for filing the motion unless you qualify for a fee waiver.
- After you file your request, the court clerk will mail a copy of it to the other side and the judge will mail a decision to you or will hold a hearing on the date the clerk put on your Form SC-105.
Changing the name on the judgment to correct a clerical error
To change the name on your judgment to correct a clerical error, follow these steps:
- Fill out a Request to Correct or Cancel Judgment and Answer (Form SC-108).
- Indicate that you are asking for an order to correct (NOT cancel) the judgment.
- When you fill in the reqest part of the form:
- Say whether you are the plaintiff or the defendant that won a defendant's claim.
- Identify the clerical error and explain why you want to correct it. If there is not enough room on the form, attach a longer explanation on a sheet of paper (or use Form MC-031, Attached Declaration).
- If you have documents that support your request, say that "exhibits are attached" and attach those papers to your form.
- File Form SC-108 (and any attachments) with the small claims clerk within 30 days after the clerk mails Form SC-130, Notice of Entry of Judgment. Keep an extra copy of the filed request for your records. You will probably have to pay a fee for filing the motion unless you qualify for a fee waiver.
- After you file your request, the court clerk will mail a copy of it to the other side. The debtor will then have 15 days to file and serve an answer. If the debtor files an answer, it will say why the judge should deny your request. In the answer, the debtor can also ask the court to hold a hearing on your request. The debtor can serve his or her answer on you by mail.
- If the debtor files an answer:
- The court may schedule a hearing so the parties can tell their stories to the judge. If a hearing is scheduled, the court will send both parties a notice of the hearing.
- If a week goes by (after you have been served with the debtor's answer) and you still do not have a notice of hearing from the court, contact the court clerk and ask what is happening with your case, giving the clerk your case name and number.
- If the debtor does not file an answer within 15 days, the judge will probably grant your request.
You cannot find the debtor or his or her assets or employer
If you do not know where the debtor lives or works, you can:
- Use the Internet and its search tools: white pages, reverse lookup, etc.
- Check with the county assessor to see if the debtor, debtor's spouse, or the debtor's domestic partner owns real property. Some county assessors will confirm if a debtor owns real property over the phone. Click to find your local tax assessor.
- Search the county clerk's records to find if the person has a fictitious business name statement on file with an address.
- Check with the court to see if there are any other lawsuits filed against the debtor, the debtor's spouse, or the debtor's domestic partner, and see if an address is listed in that file.
- And keep in mind that it may not matter if you do not know where the debtor is if you know the bank branch where the debtor has his or her accounts.
If you do not know where the debtor works or where their property is located, you can:
- Contact a credit reporting agency and pay a fee to get a copy of the debtor's credit report. Some credit reporting agencies may require that you provide them with the debtor's social security number and a certified copy of your judgment; others may not require that information. You cannot get this fee back later from the debtor.
Remember, you can always do a debtor's examination to get information about the debtor and his or her assets. Read Get Information on the Debtor's Assets to learn more about debtor's examinations.
Someone else owes the debtor money or has the debtor's property
If you know that someone else owes the debtor money or is holding property owned by the debtor, you may be able to collect.
It is possible to collect from items like:
- Judgments in favor of the debtor against someone else;
- Loans made by the debtor to someone else;
- Accounts receivable payable to the debtor;
- Rent payable to the debtor; or
- Royalty payments to the debtor.
It is possible to collect from the debtor's money or property held by someone else if:
- You want a one-time immediate collection (called "levy") from this source and not a levy that will continue over an extended period of time.
- The property you seek to collect from is accessible to the public (like an art gallery or consignment shop).
The collection procedure is not complicated. Check out Code of Civil Procedure sections 700.040 and 701.010 through 701.070.
To collect your judgment from these assets, follow these steps:
- Ask the court to issue a Writ of Execution (Form EJ-130) to the sheriff/marshal in the county where the property or other person is located. Click to learn how to ask for a Writ of Execution.
- Give instructions to the sheriff/marshal. Check with your levying officer to see if his or her office has a local form or you must prepare your own.
- A Notice of Levy (Enforcement of Judgment) (Form EJ-150) is then prepared and served on the person who is holding the property, instructing that person to turn the money or property over to the levying officer.
- If the third party does not deliver the property to the sheriff/marshal, you may be able to file a lawsuit against them. Check out Code of Civil Procedure section 701.020.
Talk to your county's small claims advisor for more information.