Judgements/Garnishments/Liens

The consumer information section is designed to share knowledge and is by no means meant as legal advice; it simply provides an explanation to commonly asked questions regarding the judicial process and procedures. If someone has filed a lawsuit against you, you may want to consult with an attorney.

What is a judgment?
What is garnishment?
What is exempt from garnishment?
What is a lien?
What is execution of judgment?
How to Have a Judgment Vacated
Legal terms
Prepare your Motion to Vacate
Motion and Declaration to Vacate Judgment
How to file the paperwork
Motion and Declaration to Vacate Judgment
Notify the original plaintiff
What Happens at Court?
I won!

What is a judgment?

At the end of a trial the judge or jury will make a decision. The judge will then provide the parties with a written decision called a Judgment. The Judgment states who won or lost and the amount of damages (money), attorney’s fees or court costs awarded, if any. The Judgment does not state when or how the money will be paid.

The party to whom the money is owed is called the Judgment Creditor (Creditor). The party owing the money is the Judgment Debtor (Debtor). Judgments are recorded by credit reporting agencies and may affect the Debtor’s credit rating. It is the Creditor’s responsibility to collect the Judgment.

The Creditor may begin the collection process immediately after the Judgment is filed. There are four basic ways for a Creditor to collect a Judgment in Magistrate Court:

• Agreement between the parties
• Garnishment
• Lien
• Execution of Judgment
• Supplemental proceedings

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What is garnishment?

Garnishment is the legal process whereby money or property that is owed to the Debtor or that is being held by someone (the Garnishee) for the Debtor, is taken to pay a Judgment. Wages and bank accounts are the most commonly garnished property.

A Writ of Garnishment directs the Garnishee to hold money or property owed to or owned by the Debtor, until the court determines whether it should be paid to the Debtor or the Creditor. If the Garnishee has any of the Debtor’s money or property, the Garnishee must hold it in accordance with the law, until the court orders its distribution.

To garnish a Debtor’s property, a Creditor must file an Application for Writ of Garnishment with the court. The Application must include the name and address of the employer, bank or person holding the Debtor’s property.

When the Creditor files an Application with the court, the clerk will issue a Writ of Garnishment. The Creditor must serve the Application for Writ of Garnishment, the Writ of Garnishment and the Answer to Writ of Garnishment form on the Garnishee.

If the Garnishee is a bank, savings and loan or credit union, the Creditor also must serve a blank Notice of Right to Claim Exemptions and a blank Claim of Exemption on the Garnishee. The Garnishee is required to mail or deliver copies of these documents to the Debtor. When an Application for Writ of Garnishment is filed, the clerk will prepare a service packet with all of the required documents. The Garnishment service packet must be served on the Garnishee in the same manner as the service of a Summons.

After the Writ of Garnishment is served, the Garnishee must file a written Answer with the Court within 20 days. If the Garnishee does not do so, the Creditor can file a Motion for Default Judgment against the Garnishee. If the Garnishee defaults, the Garnishee may be responsible for the full amount of the Judgment.

If the Garnishee files an answer stating that it owes wages to the Debtor, the court will enter a Judgment on Writ of Garnishment and Order to Pay. This order requires the Garnishee to pay a portion of Debtor’s wages to the Creditor.

The maximum amount the Garnishee may pay the Creditor is the greater of the following: 25% of the Debtor’s disposable earnings(after deduction such as Federal/State taxes) per week or the amount of the Debtor’s disposable earnings that exceeds 30 times the hourly minimum wage per week. A garnishment for wages continues until the Judgment is paid in full or until the Debtor is no longer employed by the Garnishee.

If the Garnishee owes money or property other than wages to the Debtor, the court may enter a Judgment on Writ of Garnishment and Order to Pay directing the Garnishee to pay all of these funds or deliver the property to the Creditor.

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What is exempt from garnishment?

Within 10 days after the Writ of Garnishment is served, the Debtor may file a Claim of Exemption. A Claim of Exemption lists money or property that cannot be garnished by law.

Some common exemptions are:

• Social Security benefits
• SSI benefits
• Welfare benefits
• Veteran benefits
• Workers and unemployment compensation
• Life, accident and health insurance proceeds
• Some pensions

If the Debtor files a Claim of Exemption, the money or property will be exempt from garnishment unless the Creditor files an Objection. An Objection may be made by filing a Notice of Dispute form with the court. If the Creditor files an Objection, the court will hold a hearing within 10 days to decide whether to exempt the disputed money or property from garnishment.

What is a lien?

A Lien is a financial hold on your property, giving your creditor the right to collect a debt out of the proceeds of the sale of your property.

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What is execution of judgment?

Execution of Judgment is the legal process of enforcing a Judgment through a lien, or by seizing and selling the Debtor’s property. A Writ of Execution permits the County Sheriff to take and sell property of the Debtor. The proceeds from the sale are then paid to the Creditor and applied toward the amount owed in the Judgment.

To obtain a Writ of Execution the Creditor must serve the Debtor with a Notice of Right to Claim Exemptions at least 10 days before the clerk issues a Writ of Execution. A Notice of Right to Claim Exemptions tells the Debtor that he or she can claim certain types of property exempt from execution. If the Debtor files a Claim of Exemption, the sheriff may not take any of the Debtor’s exempt property. However, this only holds true after the Debtor has identified the exempt property in his or her Claim of Exemption. If the debtor does not file this Claim, the sheriff can take possession and sell any or all of the Debtor’s personal property

How to Have a Judgment Vacated

Did someone file a judgment against you? If they did, there is a chance you can get it dismissed or "vacated." What this means is that you prove to that you have a good reason why the court should overturn its prior ruling. Perhaps you never received the summons or missed the court date due to an illness. The point is many collection agencies file lawsuits to collect money from you in court that do not follow the law resulting in a judgment against you.

You may be thinking why didn’t the judge know about this improper deviation? In most cases, if the person being sued is not in attendance or does not dispute the claim, the judge will give the plaintiff the benefit of the doubt thus ruling on behalf of the plaintiff.

If you receive a judgment or a writ of restitution and you believe you had a good reason for not responding or appearing at the "show cause" hearing, there still may be grounds for asking the court to vacate the judgment. If the court agrees that you may have had good reasons for not responding or appearing, the court may decide to set a hearing on your motion to vacate the judgment.

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Legal terms:

A judgment is the result of a summons or complaint where the court decision rules in favor of the person suing you (the plaintiff). It is a method to correct the wrong outlined in the complaint/summons against you (the defendant). The judgment will outline the actions needed to correct the violation, or the amount of money you need to pay the plaintiff.

A writ of restitution only applies for non-payment in a rental complaint filed by landlords. It is basically a court order given to a sheriff to evict you. You don't need to worry about this if you are not being sued by your landlord.

• Vacate means to dismiss
• Plaintiff is the person suing you that filed a claim or complaint against you
• The Defendant is the person being sued and receives a summons
• Civil summons is a written notification to a party named in a lawsuit directing the party to appear and defend or answer before the court. Failure to appear or answer may allow judgment to be entered in favor of the plaintiff
• Complaint a complaint is a statement of the jurisdiction of the court, the allegations constituting the cause of action, and a demand for judgment. This is the first or initial pleading on the part of the plaintiff.

Prepare your Motion to Vacate

It is important to understand your state’s rules of civil procedure. Many courts now have online self help sections that include instruction and the forms necessary to file your motion. Not following the exact procedure will result in a thrown out motion based on a technicality. You can easily search by using key words such as “California online self help forms” or by calling the court in your jurisdiction.

A few good links to view for additional information regarding state statutes and state and county procedures:
www.law.cornell.edu/topics/state_statutes.html
www.findlaw.com/10fedgov/judicial/district_courts.html

You must prepare a Motion and Declaration to Vacate Judgment and an Order to Show Cause.

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Motion and Declaration to Vacate Judgment

Once you’ve found the forms needed you will need to explain your reasons for bringing the motion by stating your defense. Such as:

• I was not served with a summons or summons was delivered to minor child under the age of 18. Each state has different laws regarding the procedures of a summons.
• I responded to the summons and complaint in time, but a judgment was issued anyway without a hearing.
• I was not able to answer the summons and complaint or appear at the show cause hearing because I was ill, had a death in the family or was deployed etc.…

You will also need to provide your defense to the judgment (why the case would have been dismissed had you shown up in the first place). For example:

How to file the paperwork

The jurisdiction that granted the judgment will be the place you will need to file your motion to vacate. It doesn’t matter if you moved you will need to go to the original courthouse to file your paperwork. There may be additional forms to fill out and you can expect to pay a fee. The fees are also available in the self help section. The clerk should know exactly what needs to be done with your paperwork, and can answer all of your questions but will not be able to provide legal advice.

Once your paperwork is in order, the court will notify you of the upcoming court date.

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Notify the original plaintiff

Once the paperwork is filed, either you will have to hire a third party to “serve” the motion to the original plaintiff or the court will notify the plaintiff and/or plaintiff's attorney. Be sure to ask if it is your responsibility to serve notice, this will be crucial to winning your case. In some cases service by certified mail is acceptable.

They offered a settlement in lieu of the judgment

Many times the original plaintiff will offer a settlement in return for a vacated judgment. Many times they know they do not have evidence to win the case or flat out didn’t follow the law and are in violation of the FDCPA. If you decide to accept the offer, demand they file all the paperwork and notify the collection agencies they may have hired to collect the money. Most importantly get in writing that they made a mistake and demand they also inform the credit reporting agencies. The letter will be your back up in case this judgment appears on your credit report.

What Happens at Court?

The best outcome would be the original plaintiff does not show up for the hearing and you win by default. If this happens, you’re done and you will receive your dismissal paperwork.

The second best outcome you could hope for is they have no evidence to support the original judgment. In other words, they are unable to show proper documentation that you were served correctly or they can’t prove the debt is legal.

In any event, make sure you are always prepared for all outcomes. Including proving your claim as to why the court should vacate. Have good documentation on the case and don’t forget to bring it with you.

I won!

You will receive court paperwork showing the case was dismissed. Keep this information in a safe place in case you need to send copies to the collection agencies and/or the credit reporting agencies. You can’t count on the defendant to do this for you even if you demanded them to. Having this paperwork will ensure your freedom from this judgment haunting you at a later date.

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