When the Debtor Will Not Pay You

Before you go any further, you should first find out if the debtor has any assets that you can go after in order to get the money the debtor owes you.

Once there is a judgment, the you can ask that the debtor appear in court to answer questions under oath regarding his or her financial status and asset information. You can then use this information to start legal collection procedures.

To do this, fill out and file an Application and Order for Appearance and Examination (Form EJ-125). There are some restrictions for filing this application, so make sure you read the form carefully. Once you file this form, you will get a court hearing and you will have to have a registered process server or the sheriff/marshal serve a copy of the Application and Order for Appearance and Examination on the debtor.

If the debtor does not show up at the hearing, the court may issue a bench warrant for the debtor’s arrest. If the debtor shows up, you will have the chance to ask him or her questions about where he or she works and what bank accounts, property, belongings, stocks, or any other assets the debtor may have.

During the examination, you can ask the debtor:

• What type of property he or she owns,
• Where that property is located, and
• Whether or not the debtor has a job.

You should come to the hearing with a list of questions to ask the debtor. (Look at Sample Questions to Ask a Debtor.) The debtor will be put under oath, but in most counties you will ask the questions yourself. The questioning will probably occur outside the presence of the court commissioner or judge. Before the hearing, you should also serve the debtor with a subpoena for any documents you need to see.

If the debtor is employed, you can get an Earnings Withholding Order to garnish the debtor’s wages until you are paid. You have the right to collect up to 25 percent of the amount over the federal minimum wage that the debtor earns (as long as it is not exempt under other rules). This only works if the other person is employed by someone else. A wage garnishment does not work against someone who is self-employed.

1. Ask the court to issue a Writ of Execution (Form EJ-130). Learn how to ask for a Writ of Execution.
2. Prepare an Application for Earnings Withholding Order (Form WG-001).
3. Hire a process server or the sheriff/marshal to serve the employer with the necessary papers for the wage garnishment.
4. The process server or sheriff/marshal will usually fill out the Earnings Withholding Order (Form WG-002) using the information from the Writ of Execution. But you may have to fill it out yourself. This form has instructions on the back for the employer explaining how much money to garnish from the debtor’s wages.
5. The process server or sheriff/marshal must also serve the employer with the Employer’s Return (Form WG-005) and Employee Instructions (Wage Garnishment) (Form WG-003). You may have to provide these forms to the process server or sheriff/marshal.

The debtor has 10 days to file a Claim of Exemption (Form WG-006). If the debtor does file this claim, you have the right to oppose it. Learn more about wage garnishments and filing or opposing a Claim of Exemption.

You can get a levy on the debtor’s bank account. You will need to know the branch where the account is kept, and, usually, you also have to know the account number.

1. Ask the court to issue a Writ of Execution (Form EJ-130). Learn how to ask for a Writ of Execution.
2. Then prepare instructions for the sheriff/marshal explaining what you want them to levy. Check with your levying officers to see if they have a local form for these instructions or prepare your own. Click to find your local sheriff.
3. In many counties you'll need to hire a process server to serve the bank with the Notice of Levy (Form EJ-150) in order to get the money from the account. If you hire a process server, they generally will prepare the instructions as a part of their fee.
4. At the time of levy or promptly after the levy, a process server or sheriff/marshal must also serve (personally or by mail) the judgment debtor with copies of the writ, notice of levy, and the Exemptions From the Enforcement of Judgments (Form EJ-155). Check to see if you are responsible for providing these forms for service.

The judgment debtor has 10 days to oppose the bank levy before the sheriff sends the money to the creditor. The debtor has to file a Claim of Exemption (Form EJ-160). If they do, you have the right to oppose it. The court then may have a hearing to decide whether to turn all or some of the money over to you as the creditor or let the judgment debtor keep it. Learn more about non-wage garnishments and other levies and filing and opposing a Claim of Exemption.

If you win and there is no stay, you can file a lien on the other person’s property. This can convert the judgment from an unsecured debt to a secured debt. This way when the defendant tries to sell or refinance his or her home, you can get paid your judgment plus accrued interest from the escrow. If you choose not to wait for the defendant to sell or refinance the property, you can look into “foreclosing” on the judgment lien. This means that you force the other person to sell the property and pay you with that money. This only works when there is enough equity in the property to pay all the liens as well as the costs of foreclosure.

1. Prepare an Abstract of Judgment—Civil and Small Claims (Form EJ-001). All the required information must be included or the lien will not be valid.
2. Take or mail 2 copies of the completed Abstract of Judgment to the court so that the abstract can be certified by the clerk of the court. There is a $15 fee for this. If you use mail, be sure to include an envelope addressed to yourself and with sufficient postage so that the court can return the certified Abstract of Judgment to you.
3. Take the certified Abstract of Judgment and 1 copy to the county recorder’s office in the county where you believe the debtor owns real property. Click here to find a county recorder. There will be a recording fee, which varies depending on a number of factors, but currently is about $20.
4. The county recorder will provide notice to the debtor that you have recorded the Abstract of Judgment.
5. You will not be paid automatically, but if the debtor refinances or sells the property, you may get paid your money with interest at the legal rate, which is currently 10 percent.
6. If you believe the debtor owns property in more than one county, you will have to repeat this process for each county. Only one Abstract of Judgment needs to be recorded per county, even if there are multiple properties within a single county.

Some county assessors will confirm if a debtor owns real property over the phone, or you may be able to find that information online at the county assessor’s website. Click here to find your county tax assessor

You can have the sheriff take the debtor’s personal property and sell it at public auction to pay the debt. But, often, the cost of doing this is more than the value of the property, so make sure that the property you want the sheriff to take and sell will be worth all the effort and money.

One of the items of personal property you can put a lien on is the debtor’s vehicle. After you put the lien, the sheriff would seize the vehicle and sell it. This process is fairly expensive. Also, there often is not enough value, if any, left in the vehicle to pay very much of the judgment.

But if you decide you would like to do this, follow these steps:

1. Start by getting information about the car, including its identification number (VIN), make, model, color, license number, and physical location. If possible, also find out if a bank or other lender has an interest in the vehicle.
2. Ask the court to issue a Writ of Execution (Form EJ-130) directed to the sheriff/marshal in the county where the vehicle is located. Learn how to ask for a Writ of Execution.
3. Give the sheriff/marshal written instructions that describe the vehicle as thoroughly as possible and pay the fees and deposit (approximately $1,000).
4. An officer will then physically remove the vehicle and store it. Daily storage costs will accrue until the vehicle is sold.
5. The sheriff/marshal then advertises the public auction of the vehicle and gives notice to the debtor.
6. If the vehicle is sold at auction, before you get paid, the sheriff's fees and storage costs, will be paid. Also, the debtor is entitled to $2,300 of the proceeds of the sale (paid to the debtor or to a lienholder if there is a loan on the vehicle.

Getting a Writ of Execution (Money Jugment) may be a required first step in enforcing your money judgment and is the most common method of reaching a judgment debtor’s interest in real and personal property.

When a court issues a Writ of Execution, the court directs the sheriff or marshal to enforce the money judgment in the county where the assets are located.

• Writs of Execution are only good for 180 days, so you may need to get a new Writ of Execution if your collection efforts are taking longer than 180 days.

To ask the court to issue a writ, you will have to prepare the Writ of Execution (Form EJ-130) and an affidavit supporting the writ of execution, where you explain why you need this writ of execution to collect on your judgment.

Courts may deal with writs of execution differently:

• You may just have to file the writ and the affidavit and wait for the judge’s decision. If the judge agrees with you, the court will issue you a Writ of Execution.
• In some cases, you may have to ask for a hearing in front of the judge and maybe even give notice to the debtor that you are going to court to get a Writ of Execution.

Talk to the clerk at your local court to find out how your court handles this process.