HOW TO COLLECT A MONEY JUDGMENT

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1 HOW TO COLLECT A MONEY JUDGMENT Materials prepared by: Pamela J. Palmer Palmer Law Office LLC 2301 Burlington Suite 270 North Kansas City, Missouri (816) Fax: (816) ppalmer@palmerlawoffice.com 1 DD--1

2 SO I HAVE MY JUDGMENT, WHERE S THE MONEY??? Litigation may have been a long and hard fought battle requiring a trial, perhaps by jury, and maybe even an appeal or the easier Judgment by default. In any case, just having the Judgment does not guarantee that you or your client will be paid by the Judgment Debtor. On the contrary, the fun may have just begun! Now the search for assets begins searching for the hidden pot of gold and hoping there is enough if you find it to satisfy in part or whole the Judgment. Judgment Entry Rule 74.01(a) requires that a Judgment a decree and any order from which an appeal lies must be in writing filed and signed by the Judge and named JUDGMENT or DECREE. Practice tips: If you practice in both Missouri and Kansas be sure to call a Judgment Entry by that title and not Journal Entry as it is designated in Kansas Courts. Also, it is best to be specific in the Judgment Entry as to the amounts that are being awarded, i.e., set out the principal, interest and attorney fees in dollars and cents rather than interest at a certain rate from a date. The rate of post-judgment interest should also be set out to avoid future problems. If specific amounts awarded are not set out, they must be at a least capable of being determined from the record. (Gardner v. Gardner, 830 S.W.2d 559 (Mo. App. 1992). You do not want your execution delayed while dealing with a clerk who wants to recalculate the interest amounts or attorney fees amounts on the garnishment request you have filed. 2 DD--2

3 Under R.S.Mo., the right to execute commences immediately after the Judgment is rendered for monetary damages. This right continues throughout any postjudgment motions unless a supersedes bond is posted by the Judgment Debtor. The amount of the bond required to be posted and the filing conditions are set out in Mo. S.Ct. Rules and Even if the Judgment Debtor pursues an appeal, that debtor must post the supersedes bond or run the risk of having the Judgment Creditor begin execution. Caveat: Of course, if the outcome of the appeal is a decision on favor of the Judgment Debtor, the Judgment Creditor will be held responsible for giving back the property to the debtor. Liens If your Judgment was rendered by a Circuit Court, you have an automatic lien on any real property owned by the Judgment Debtor in that county. Rule and and If your Judgment was entered by an Associate Division, you need to request that the Judgment be transcribed to the Circuit Court to create the lien on real estate. To create a lien on real property owned by the judgment debtor in other counties, file a certified copy of the judgment in the Circuit Court where that property is located and RSMo. The requirement of obtaining a certified copy of the Judgment for transcription is only observed in a few counties in the State of Missouri, in my experience. Generally a letter to the clerk asking that the lien be transcribed is sufficient along with the costs required. Be sure to specify that you want it to be a lien on real property or you may receive the duly authenticated copy that would be required for 3 DD--3

4 registration as a foreign judgment or a certified copy which will cost more in fees and delay the attachment of the lien to any property owned by the judgment debtor(s) in that County. Most counties do not charge a fee for registration of a judgment from another Missouri county. This would need to be done if the judgment debtor owns property in a county other than the rendering one. Note: Small claims judgments do not and cannot create a lien on real estate other than by execution or levy upon the judgment RSMo. Federal Court judgments are liens on real estate owned by the judgment debtor only in the county where the court sits but can also be transcribed or recorded in the circuit court where the debtor owns real property. (See 28 U.S.C. 1962; Mo. S.Ct. Rule and RSMo.) Liens become important when the judgment debtor wants to sell or refinance real property or wants to purchase property and the title insurance company and mortgage lender demand first lienholder status or clear title to pass to a purchaser. Sometimes this is the only way to collect a judgment and should be done on EVERY judgment. Judgment liens in Missouri used to last only 3 years although the judgment s life was 10 years. In 2001, our legislature revised to make the judgment liens duration 10 years subject to revival on all judgments entered after August 28, (The corresponding Missouri Supreme Court Rule was not revised to match the statute until January 1, 2003 and even then did not contain the same language as the statute as to 4 DD--4

5 which judgments were within its application. Under case law when this has occurred, the revision of the statute annulled the Rule and this should really cause no problem now that we have traveled past that time.) If the judgment is not revived within 10 years after it was entered, RSMo. states that the judgment is presumed to have been paid. Payments on the record (i.e., successful garnishment) during the 10-year life of the judgment will extend this time limit. See Mo. S.Ct. Rules and for the rules on a Motion and Order to show cause to revive the judgment. This Motion should be filed in the County where the judgment was originally rendered and the Judgment Debtor will have to be personally served with the Motion so it is good to begin this process at least 6 months before the judgment is about to expire. Executions The request for execution must issue from the Court that rendered the original judgment but can be issued against real property or personal property to any other county in the State of Missouri for service and execution. The act of issuing the execution is a ministerial act of the clerk directing the sheriff or Court Administrator to serve it. Under Missouri Supreme Court Rule 76.05, multiple executions can issue at the same time. At the beginning of this year, the execution statutes were amended to allow the durations to be in 30 day increments ranging from 30 days to 180 days. 5 DD--5

6 Garnishments Garnishments on to attach wages or a bank account owned by the Judgment Debtor are the most common form of execution. The legal authority for issuance of a garnishment is contained in Mo. S. Ct. Rule 90 and Chapter 525 of the Missouri Revised Statutes. Although each circuit or county is allowed to publish and implement its own local rules including a wide variance on the costs charged by the sheriff for service of a garnishment, most counties whose records are now accessible by Casenet allow the filing of the on line forms. These are the approved forms and help to eliminate the time consuming task of preparing the forms on carbon packets. The website for location of the downloadable forms is: dad7c7624c86256c ?opendocument These forms are in PDF format so if you use them on line, you must create a copy for your own file as they cannot be saved to your computer software systems. Some software programs will allow the creation and input of these forms including the Interrogatories so that they can be merged with the pertinent information and created much more easily. The Interrogatories are required to be served along with the Garnishment Order itself on the Garnishee. Failure to do so is fatal to the garnishment. State ex rel. Eagle Bank and Trust Co. v. Cocoran, 659 S.W. 2d 775 (Mo. Banc 1983). However, if the employee is a government worker, the correct filing is a sequestration of wages. This is accomplished by checking the appropriate box on the garnishment form 6 DD--6

7 and eliminating the Interrogatories. A copy of the Interrogatories and the Garnishment forms are attached to this material. You as the attorney for the Judgment Creditor set the length of the garnishment at 30, days, 120, 150 or 180 days. Typically 180 days is used for wage garnishments as a means of capturing as much money as possible without incurring additional court costs or running the risk of having an intervening garnishment in place when your subsequent one is served. However, if there is a small amount remaining to be paid on the judgment to satisfy it, you may want to choose reduce the duration. Please check the appropriate block when preparing the garnishment/execution to save the clerk from guessing at what you want to delaying the issuance while the clerk attempts to contact you by phone or letter. Bank garnishments usually are issued for only 30 days to facilitate returns on the garnishment interrogatories being filed and the funds paid to the clerk and then to your office for application to the outstanding balance while interest continues to run. The Garnishee is required to hold any assets or property belonging to the Judgment Debtor from the time of the service of the garnishment until either a Release of the garnishment is filed by the Judgment Creditor or the property is turned over to the Court or Sheriff. Within 10 days after the expiration of the garnishment Order, the Garnishee is required to file with the Court verified Answers to the Interrogatories under Mo. S. Ct. Rule 90.07(b). If in those Answers, the Garnishee admits that there is property being held by it that belongs to the Judgment Debtor, it shall be forthwith turned over to the Court or the Sheriff that issued or served the garnishment. No longer are Motions and Orders for 7 DD--7

8 payment or delivery required. The Garnishee may also turn over to the Court or Sheriff any property subject to the garnishment prior to the expiration date. Hike v. Bank of Washington, 251 S.W.2d 963 (Mo. App. 1952). If the Garnishee fails to answer the Interrogatories, the Judgment Creditor can eventually obtain a Judgment against the Garnishee but only after taking two procedural steps. First, a Motion to Compel Answers to the Garnishment needs to be filed. Practice Tip: I like to call and/or send a reminder or Golden Rule letter to the garnishee before filing the Motion just to see if there might have been a mix up or if there are other factors or means to resolve this short of additional pleadings and Court hearings. Then I can state in my Motion that I have attempted to obtain this information. Generally, the Court will grant an Order requiring Answers to the Interrogatories to be filed within 10 to 15 days. Serve that Order on the Garnishee by mail. Send a cover letter with it reminding the Garnishee that the original Answers are to be verified and filed with the Court and a copy provided to you. Second, when the time for the Answers to be filed has passed with no response from the Garnishee, you must now file a Motion for Judgment against the Garnishee. In order to prevail, you are required to prove to the Court the amount that should have been withheld by the Garnishee. Without the books and records of the Garnishee, how do we do that? Some attorneys use R.S. Mo. and file a Motion for the Court to attach the body of the individual Garnishee or in the case of a corporation, the body of a designated officer and hold that person until he/she answers including a request that the cost of this 8 DD--8

9 procedure be taxed against the Garnishee. I have in the past used Requests for Admissions directed to the Garnishee which when not answered gave the Court a basis for deeming the requested information to be admitted. Caution: The Rules of Civil Procedure in Missouri do not allow for the use of post judgment discovery by Requests for Admissions. Another tactic is to try to subpoena the information from the Garnishee and ask the Court to hold the Garnishee in contempt for failure to comply with the subpoena duces tecum. In any case, once the amount is established to the satisfaction of the trial court, a Judgment can be issued against the Garnishee in the underlying case and any execution available against the original Judgment Debtor can be used against the new Garnishee/Judgment Debtor. If a writ is issued requesting the seizure and sale of personal property, the property may be sold AFTER the return date if the writ is served properly within the time requested and allowed by the clerk on the order sent to the sheriff or Court Administrator. The execution and lien created by the issuance of the writ are in effect for 180 days from the issuance or until the property is sold, whichever occurs first under Mo. S. Ct Rule General levies are issued on the debtor s property in general. These can be designated as Nulla Bona executions. Because at least one unsatisfied execution is required before an examination of Judgment Debtor can be heard, the nulla bona executions are sometimes used. Special executions direct the serving officer to levy only on specific property. Lesson to be learned: Specify the car, truck, boat, trailer or other item of property you wish the sheriff to seize including identifiers including serial and VIN numbers. 9 DD--9

10 Executions on real estate: ( RSMo.) 1. Order a title report from a title company commonly called an Ownership and Encumbrance or O&E report). 2. Contact the Circuit Clerk or sheriff of the county where you are going to issue this to be served and the sale conducted. This will be most helpful because each county seems to have their own way of conducting these types of sales and the documents they require vary with each forum despite the statewide rule. 3. If the property is the primary residence of the debtor(s), get an appraisal and file a Motion to allow the sale with the Court serving a copy on the judgment debtor(s). Caveat: Don t forget the tenancy by the entireties presumption in Missouri if the debtor is married in which case you can only execution on the jointly owned real property IF you have a judgment against both spouses. 4. File a request for levy by the sheriff in the county where the real property is located. 5. Prepare and mail by regular and certified mail, notice of the sale to ALL interested parties as shown on the title report. 6. Publish the notice of sale in the local paper of weekly or daily distribution at least 20 days prior to the sale and obtain proof of the publication from the newspaper. The cost of the publication is a cost of the litigation that can be recouped from the sale proceeds. 7. Make sure an adequate sale price is obtained at the sale for the property. Missouri case law sets this standard or test of the price received as the price 10 DD--10

11 received in comparison with what the property would bring at a fair sheriff s sale. City of St. Louis v. Peck, 319 S.W.2d 678 (Mo. App. 1959). 8. Prepare the sheriff s Deed for the purchaser who will be responsible for recording it. Executions on Personal Property: ( RSMo.) 1. Review all records for liens such as the Missouri Department of Revenue and UCC filing records for vehicles, boats, trailers, recreational vehicles, etc. 2. Issue the levy to the sheriff of the county in which the personal property is located. 3. Secure storage and towing arrangements for the sheriff and put the officer in direct contact if requested to do so with those companies providing those services. 4. Assist the officer in locating the property to be seized by providing all available information on where it may be located within the county and go with the officer if it will assist in the process. 5. If seizure of tangible personal property is impracticable, it can be constructively seized by the officer posting notice of the levy on or near the property. This is obviously not recommended because there is little other than a contempt order to be issued against whomever you can prove removed the property if it is not located in the same place the next day. 6. The sheriff or Court Administrator is required to give notice at least 10 days prior to the sale of personal property by three advertisements posted in public places in the township where the sale is to be held. 11 DD--11

12 7. If the property is perishable or depreciating rapidly in value, the Court may order an immediate sale without notice for cash to be deposited with the Court. 8. Again, contact the local clerk and/or sheriff to see how they want to handle each situation and let them know that your request is coming so they don t misread it, think it is a usual garnishment and just serve it on the debtor who will then possibly know what is being planned by you. 9. If you are attempting to levy on partnership interests, the levy is called a Charging Order and governed by R.S. Mo. A receiver can be appointed for the partnership but partnership property will not be an appropriate subject of a levy on a judgment rendered only against one or less than all of the partners. 10. Seizure of Stock shares or securities is made by actual taking of the stock certificate if available. If the security is in the hands of an issuer, notice of the levy being served is made on the issuer along with an attested certificate by the sheriff. See and R.S. Mo. Potential Liability Yes, you are the creditor and yes, you are now in a more elevated posture as the judgment holder, but there are still potential pitfalls and liability issues for you to consider. 12 DD--12

13 Wrongful Garnishment can be claimed by a debtor if he/she can prove that the judgment was paid before the garnishment was filed. Missouri Supreme Court Rule requires that the garnishor state that he/she knows or has good reason to believe that the garnishee is indebted to the debtor, or that the garnishee has control or custody of property belonging to the debtor. This could put an end to blind garnishments. You may want to require that garnishments not be issued without a valid reason for believing that the garnishee has funds belonging to the debtor. The garnishee is also entitled to a reasonable fee for responding to the garnishment if a proper application for such fee is made to the court by the garnishee. (Rule 90.12(a)) If the garnishee files an Answer to the garnishment interrogatories stating that it holds no property belonging to the debtor, the judgment creditor can challenge that answer only if filed within 10 days of the answer being filed by the garnishee with the Court. If not filed within that time, the Missouri Appellate Court has held that the Court has no jurisdiction to hear this challenge. If the challenge is filed timely and decided against the judgment creditor, that creditor may be held responsible for the garnishee s attorney fees incurred in defense of the answers filed to the interrogatories. Lesson to be learned: Advise your client of the potential risk and only challenge if there is clear evidence of incorrect answers being filed by the garnishee. Levy and publication fees should be explored and explained to the client before being incurred and weighed against the estimated value to be received at sale of the seized 13 DD--13

14 property. Usually, the sales of property on the Courthouse steps are not well attended and the property could sell for very little to nothing. Finally, the costs of all postjudgment procedures should be investigated before being incurred unless there is a great likelihood of substantial recovery through this procedure. For example, some counties in Missouri charge as much as $ per garnishment/writ. New Exemptions Under Missouri Law Effective as of August 28, 2004, the exemption statutes were changed which increased and revised amounts which could be claimed as exemptions by Missouri residents as found in Sections and RSMo. Those changes include: (1) Increases the exemption for household good, wearing apparel, books, musical instruments, etc. to $3, per person from the present $1, (2) Adds an exemption for a wedding ring not to exceed $1, in value, in addition to other jewelry not exceeding $ in value, as in the present statute (3) Increases the any other property or wildcard exemption to $ per person from the present $ (4) Increases the tools of the trade exemption to $3, per person from the present $2, (5) Increases the motor vehicle exemption to $3, in the aggregate from the present $1, for a single vehicle (6) Increases to $5, per person from the present $1, the exemption for a mobile home used as a principal residence by the debtor, if the mobile home is not on or attached to real property in which the debtor has a fee interest. 14 DD--14

15 (10)(d) Increases to $ a month from the present $ per month the amount of alimony, support or separate maintenance that may be claimed as exempt Increases the head of household exemption to $1, from the present $ and increases to $ form $ the exemption for each dependent under the age of 18 (as under present law) and for each dependent that is determined by the Social Security Administration to be disabled, as defined in the Internal Revenue Code (this is a new provision.) Practical Considerations for Executions Discovering Assets: Credit Applications submitted by a debtor to a creditor to begin or continue any credit transaction can contain banking information and names, addresses or telephone numbers of other creditors who might be willing to share information about the debtor. Question your client for information especially if an onsite sales person was involved in a commercial transaction with the debtor that created the account receivable. Credit Bureau Reports The information contained in these reports is only as current as information submitted by an inquiring or reporting creditor. These are generally available only for individuals/consumers and the ability to have access to such reports usually requires you or your firm to pay an on-going fee. Be sure to review the Federal statutes on the Fair Credit Reporting Act to determine whether you would be liable to a debtor for making any unauthorized or sanctioned inquiries which will appear on the consumer s credit report/record. 15 DD--15

16 Credit bureau reports can be useful in locating a possible bank account or employment information or locating other creditors who might be willing to share information with you. Information about business debtors can come from such reports as Dun & Bradstreet but keep in mind that this information is submitted primarily by the debtor s principals so it may or may not contain accurate information. This same report is used by potential credit grantors and the debtor business principals know that inflated asset information will assist them in obtaining additional credit. Asset location Agencies are also valuable tools available to locate assets of a judgment debtor. Generally, you are charged a flat fee for location of assets and receive an indepth report on the agency s findings. With the advent of the internet and services offered there, the prices charged for this service have decreased. Nevertheless, you and your client will want to weigh this expense that is not attachable as a court cost to the debtor s obligation under the judgment to see if it is economically feasible. Judgment Debtor Examinations Most states have a procedure for the creditor to question the judgment debtor under oath to find out about his/her assets. This procedure in Missouri is not effective. By state statute, judgment debtors are allowed to assert their Fifth Amendment right to refuse to answer questions which might incriminate them. This grew out of case law in which the Internal Revenue Service was investigating a judgment debtor possibly in anticipation of tax imposition and fraud prosecution. Any judgment 16 DD--16

17 debtor who has an attorney will be well advised to state only his/her name and assert this privilege in response to all questions about assets, income and bank accounts. In some areas, the Judges will educate the judgment debtors of this right if it is a pro se debtor who is appearing. In few counties will a Judge enter a body attachment if the debtor does not even appear for this hearing. Nevertheless, IF the debtor appears and is willing to answer questions, you may find out about real or personal property, insurance policies with any cash value, stocks, bonds, savings or checking accounts, IRA accounts and other attachable property. Tax records maintained by the county or city in which the judgment debtor lives may also be searched for real and/or personal property holdings. These are public records which are open for public review and some are available by telephone, written inquiry or now the Internet records. Most counties or cities have a tax base rate that you will want to know to determine the true property valuation. Internet Resources There now many databases, some of which charge a fee to access, for asset searches. Don t forget that some of the counties have internet accessible records of pending and past court cases that can be indexed by the defendant s name to see how many other cases have been filed and by whom. Sometimes there are records of which bank or employer was served with a garnishment and whether that execution was effective. 17 DD--17

18 Divorce and Bankruptcy Records Filing of either type of case by a debtor requires much financial disclosure. The past bankruptcy records contain schedules in detail of assets and liabilities which are very helpful IF the bankruptcy action has terminated without a discharge to your client s claim. Check copies Copies of checks or records of the bank on which they were drawn that your client or you might have kept when receiving even a small payment would be most helpful. Perhaps you should ask your client in case the client just forgot to look for information like this in its file or forgot to share that tidbit with you. Also, if the debtor is an ongoing business, it might well be worth your time to get one of your employees or go yourself to the business and write a check to see where it is deposited by the debtor. There will be an endorsement on the back side of your cancelled check that could give you all kinds of information ranging from the debtor s bank account where the money is deposited to the actual name of the debtor business that it holds its bank account under presently. 18 DD--18