John Roska: Turning judgment into payment no sure thing

John Roska: Turning judgment into payment no sure thing

Q: I won my small claims case against someone, but they haven't paid. How can I make them pay, so I actually collect?

A: You can try several things. But if all their money or property is legally protected, you probably won't get paid.

"Winning" a small claims case means you got a judgment against someone. A judgment is an official decision that money is owed.

But, owing money, and actually having to pay it, are two different things. That's why a judgment is not a payment order. Turning a judgment into a payment order is no sure thing.

That's because the law protects certain money and property from creditors. "Exempt" money and property can't be taken, even after a judgment, or by a judge's order. It leaves debtors with some basics to live on.

Almost all unearned income is exempt. That means all unemployment, workers' comp and public assistance, and most disability and retirement benefits. If that's all your debtor has, they can voluntarily pay you, but nobody can make them.

The first $371.25 per week of net earned income is also exempt. So if your debtor nets less than that, you can't garnish their wages, and a judge can't order them to pay anything.

Otherwise, a wage garnishment can get the weekly net pay that's over that $371.25 threshold, or 15 percent of gross pay — whichever is less. The wage exemption protects everything else.

The main other exemption is the $4,000 personal property exemption. It's the "wild card" exemption, because it can protect any property debtors select. Usually, that's money and bank accounts.

The "wild card" can also protect other things. But having the sheriff "levy" on stuff like jewelry or electronics is complicated and expensive. It's rarely done.

Which means that if your debtor is unemployed, and has less than $4,000 in cash or a bank account, you're probably out of luck. Debtors fitting that profile rarely have anything else that creditors can touch.

Legally speaking, you can't get blood out of a turnip. Which is why the most important question in a collection case isn't "Can I win?," but "Can I collect?"

So, how do you collect? If you don't know what your debtor's got, serve them with a citation to discover assets. That requires them to come to court, and answer anything you want to ask about their money and property. As the name suggests, a citation tries to discover assets — hopefully nonexempt ones.

If you discover nonexempt wages, you can do a wage garnishment. That requires the employer to divert any nonexempt wages to you.

If you discover more than $4,000 in cash or accounts, the judge could order the excess, nonexempt amount be paid on the judgment. Serving a citation on a bank would also freeze the account, so a judge could order that any nonexempt funds be paid to you.

If you discover real estate, record your judgment as a lien. Foreclosing on judgment liens is as rare as sheriff's levies, but the lien can eventually get you paid. If the debtor sells any property, they'll have to pay you off to remove the lien and deliver clear title to their buyer.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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