Once you have filed an action, gone to trial, won, and obtained a judgment you work is not yet done. You have to collect on your judgment.
There are two basic ways to collect on a judgment. The first is levy and the second is garnishment. Levy involves the process of physically going to the home or place of business of the judgment debtor and picking up the debtor's personal property, taking it is a warehouse, and later selling it at auction in a sheriff's sale on the courthouse steps. Garnishment involves recovering on a judgment from people that owe money to your judgment debtor, i.e. debtors of your debtor. The two most common types of garnishment are continuing garnishment and the garnishment of a bank in which you believe your debtor has funds on deposit.
The Magistrate Court of Forsyth County has produced some helpful documents related to collection of judgments. Links to some of those documents are provided here. The first is an outline of post-judgment procedures at Basic Outline Of Post-Judgment .pdf.
After you get a judgment you must get a Writ of Fierier Fascias, almost always shortened to "Fi Fa". A judgment and a Fi Fa are just pieces of paper. The judgment declares the ruling of the court, it indicates who wins, and how much money they get. The Fi Fa is an order from the court that tells the sheriffs of the various counties in the state to collect upon the judgment.
Obtaining a Fi Fa usually means that it becomes recorded in the county in which you obtained your judgment. Once a Fi Fa is filed in the county records is acts as a lien on all real property owned by the judgment debtor. When a judgment creditor is aware of land owned by a judgment debtor in counties other than the county in which the Fi Fa was obtained it can be useful to file the Fi Fa in that other county as well. It will act as a lien on that property and may ensure the debt gets paid if the land is sold.
As suggested above the process of levying on property to satisfy involves obtaining possession of the property and selling it at a sheriff's sale. The process is somewhat cumbersome, and presents potential liability problems.
To levy on the personal property of a judgment debtor you must know what he owns and where that property is located. The judgment creditor then makes contact with the sheriff's department in the county in which the levy is to be executed. Some sheriff's departments require the use of specific bonded warehouses or moving companies.
The process of executing a levy involves the literal removal of a debtor's personal property from his person or a premises. It can be very unsettling and emotional. Most sheriff's deputies loathe the process and some sheriff's departments have policies and procedures that make it seem difficult to impossible to actually conduct a levy. The key is to learn all the procedures, follow all instructions, and be persistent.
The personal property to be levied upon must be the property of the judgment debtor. A judgment creditor can be held liable for conversion If the creditor levies upon goods that are not in fact the property of the judgment debtor. For example, the judgment creditor that takes the dining set that appears to belong to judgment debtor Mr. Smith while the furniture actually belongs to Mrs. Smith can be sued successfully by Mrs. Smith. The judgment creditor must also beware of property owned by the debtor but on which another creditor has a security interest with priority over the judgment. See below for a discussion of post judgment discovery that may enable the judgment creditor to learn key information about ownership and debt related to personal property of a judgment creditor.
Post Judgment Discovery
Post judgment discovery is the term for learning about the assets and liabilities of a judgment debtor. A creditor may conduct post judgment discovery only after a judgment has been obtained. That may appear to go without saying but almost all creditors want to know how much their debtor has before pursuing a claim to a judgment and are frustrated to learn that the discovery process that leads to that information is only available after a judgment has been obtained. A sample for for post judgment interrogatories as produced by the Forsyth Magistrate Court is available by clicking Post Judgment Interrogatories.pdf. Another form of post judgment discovery is available by clicking Post Judgment Discovery.pdf. When a judgment debtor does not respond to post judgment discovery it sometimes becomes necessary to file a motion to compel. A form as provided by the Forsyth Magistrate Court is as follows, Motion To Compel Answers.pdf.
Garnishment is the most common form of post judgment collection. There is less risk and less cost in terms of time and money as compared with levy. Garnishment can be a "regular" garnishment or a "continuing" garnishment. The concept of a garnishment is that you file a garnishment action naming the judgment creditor as plaintiff, the judgment debtor as defendant, and a third party as a the garnishee. The garnishee pays money that would otherwise be owed to the debtor into the registry of the court and the court pays the money over to the creditor.
As an aside, a pet peeve of the author is the non-word "garnisheed". There is no such word. When a person garnishes another's wages, the person is a "garnishor" and he has "garnished" the wages of the defendant, not "garnisheed" the wages of the defendant. The defendant has not been "garnisheed" and the employer, the bank or other debtor to the judgment debtor, is the garnishee whose funds are the subject of a garnishment and that person or entity has been no more "garnisheed" than the plaintiff/garnishor or the defendant/debtor.
Regular garnishment is used typically against bank accounts but can be used against trade debtors of a judgment debtor. Continuing garnishment is used against an employer of a judgment debtor. The forms and procedures are sometimes peculiar to the jurisdiction in which the garnishment is filed, typically the jurisdiction in which the garnishee has an office or a registered agent. The forms are typically available from the clerk's office and many times employees in the clerk's office will offer limited advice on how to fill out the forms.
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