An Overview of Creditor-Debtor Law and Judgment Enforcement Techniques

 

CAUTION STATE LAW VARIANCES ! ! !

Judgment enforcement law is about as non-uniform

between the various states as any body of law.

 

Form of Judgment for Collection

Most of the time, litigators who are pursuing a debtor are concerned enough about just getting a judgment against the debtor, without worrying too much what that judgment looks like. The form of a judgment can, however, have dramatic implications for post-judgment enforcement activity. Follows are some helpful hints.

First, if you state has a standard form to be used for a judgment, attempt to use that form first before drafting your own from scratch. The reason is that a good deal of post-judgment activity involves the clerk and the sheriff, and using a standard form judgment makes it easier for them in determining what they need to do. By contrast, a long and complicated judgment form might languish for weeks in the clerk's or sheriff's office as somebody finds the time to decipher it.

Second, if you have to draft your own judgment, then follow the KISS principle -- Keep It Simple, Stupid. Too many judgments are overly complex and, while it may makes sense for counsel who have lived with the case for several years, makes little immediate sense to those approaching it for the first time. Again, much of the time in post-judgment enforcement, you'll be dealing with the clerk's and sheriff's offices, and generally they have no Professor Kingsfield to explain the judgment to them. Short, clear, and concise is how to draft a judgment if you want it enforced without problems arising from the language of the judgment.

Third, make sure that it is crystal clear what amount of the judgment is attributable to each debtor, and if there is joint and several liability. Debtor's counsel often gum up the works by showing that there is an ambiguity in the judgment as to who is responsible for what, or for how much, thus requiring the creditor to go back into court and amend the judgment, which can take some months depending on the court's docket.

Fourth, if there is an initial judgment for liability, and then other things are added later, such as attorney's fees and costs, etc., consider going back into court for a "Final Amended Judgment" that rolls everything together into a single document.

Fifth, if you are in a community property state, try to get the court to specify that the judgment is also against the community of the debtor and spouse (or both if they are joint debtors). While the community property should be liable for the debt anyway, this can help in certain situations, such as dealing with the sheriff's office or if you have to domesticate the judgment in another state.

Sixth, have a process server personally serve the judgment on each debtor. Occasionally, a debtor will argue that "my attorney never told me that a judgment was entered against me", and sometimes a particular bench officer will have a weak moment, buy into this argument, and give the debtor a chance to argue that the judgment is somehow invalid (these attempts almost work, but they do cause delays). If there is a Proof of Service in the file that says that on January 16, the process server slapped the debtor upside the head with the judgment, you can avoid that particular charade. This is a must if you are dealing with a default judgment, since the debtor will inevitably feign ignorance of the judgment altogether.

Suffice it to say that much of this is simply common sense, but take if you are drafting a judgment, think ahead to post-judgment enforcement and how the judgment should be look for that purpose.

 

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© 2017 by Jay D. Adkisson. All rights reserved. The materials herein may not be produced in full or in any part without the express, written permission of the author. No claim to original U.S. government, state or local works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction.  This site http://www.collectingonajudgment.com  Contact Jay Adkisson by phone to 702-953-9617, by fax to 877-698-0678, or by e-mail to jay [at] jayadkisson.com