Do you have a debt to collect? Are you concerned about the difficulty of claiming your debt and getting into legal battles with the person who owes you money? In this article, our Colorado collections attorneys discuss various ways that creditors can collect what is owed to them.
Say you win a lawsuit against someone, and the court orders the other party to pay you for your loss. The favorable ruling may give you an immediate sense of relief, but, unfortunately, your problems may not be completely over.
A Common Litigation Problem: Failure to Collect a Judgment
Failure to collect a judgment from a lawsuit is a common problem. An experienced attorney knows that whenever you get a judgment in a case, there’s no guarantee you will be able to collect from the opposing party. Below are a number of tactics you and your attorney can use to get the other party to pay up.
1. Post-Judgment Interrogatories
You’re probably thinking, “what in the world are “post-judgment interrogatories.” An interrogatory is a series of questions used to figure out the assets of the opposing party. These questions are important because the opposing party’s assets can be sold so you can receive the money you’re owed. The court can also place a lien against the opposing party’s assets. We’ll address liens and selling property further in this article.
If the opposing party is a business, the court can take into account the company’s assets. In the case of an individual or a group of individuals, bank accounts, homes, cars, and other such assets will be assessed.
2. Obtaining a Lien on Real Property
If the debtor does not comply with the court order to pay you, your attorney can file a Transcript of Judgment to obtain a lien on their property so that it can be used in collection proceedings. If the debtor has property in more than one county, you must record this in every county where the property is owned.
The judgment lien will attach to all of the judgment debtor’s (debtor) real estate located in the county or counties where the transcript is filed.
After you and your attorney get a judgment lien against the debtor’s real property, you may seek a writ of execution and file a certificate of levy to execute on the property.
Your attorney can check with the county assessor’s office to determine whether the debtor owns property in any particular county. Many Colorado counties provide this information on their websites.
Once you obtain the lien, you may get paid if they refinance or sell the property.
3. Collecting from the Debtor’s Wages
You can obtain a Writ of Continuing Garnishment to garnish the debtor’s wages until you are paid what you are owed. As the name says, a Writ of Continuing Garnishment is a way for you to collect a judgment in payments from the debtor over time.
A Writ of Continuing Garnishment is good for up to six months. If the amount owed to you is not paid off by that time – or unlikely to be paid off – you can serve another garnishment. Here is a Writ of Continuing Garnishment form.
How Much Can I Garnish from a Debtor?
You may only garnish up to 25 percent of the amount over the federal minimum wage that the debtor earns. Colorado authorizes garnishment to support attachment and execution in both county and district courts; see the sections below for more about attachment and execution.
Payments from pension and retirement plans are exempt from garnishment, except for child support purposes.
Many more sources of income qualify as earnings for the purposes of garnishment for child support. For these purposes, “earnings” also includes the following:
- Workers’ Compensation benefits
- Pension and retirement benefits (only for child support garnishments)
- Compensation paid or payable to an individual employee or independent contractor for personal labor or services
- Dividends, interest, trust income, annuities, and capital gains
- Severance pay
- Monetary gifts & monetary prizes (excluding certain Colorado Lottery prizes)
- Taxable distributions from general and limited partnerships, closely-held corporations, and limited liability companies
- Rental income
- Funds held in or payable from health, accident, disability, or casualty insurance to the extent that it replaces wages or provides income in lieu of wages, and tips
4. Collect from the Debtor’s Bank Account
You and your attorney can levy the debtor’s bank account by asking the court to issue a Writ of Garnishment. There are several required court forms that must be completed in order to complete a Writ of Garnishment.
If you decide to take this enforcement route, you would be wise to retain an attorney as this process is procedurally intensive.
Sometimes, getting the Judgment or Court Order is only half the battle. In cases where the debtor is hiding assets or refusing to pay, you may need the help of an experienced litigation attorney to help you collect your money.
5. Seize the Debtor’s Property
The process of taking legal custody of a debtor’s property is called attachment. This allows a creditor to access the debtor’s property and take it into legal custody so that it can be used to satisfy the debt. Attachment is a time-sensitive process that is available from the time a claim is filed until the court’s judgment is entered. Filing an attachment involved adherence to rules and procedures.
According to Colorado law, attachment is generally only available when the debtor has fled the area or is about to flee with or squander their assets. The principal purpose of attachment is to prevent the debtor from disposing of or diminishing the value of the property that might be used to satisfy a possible future court order against them.
Attachment Can be Used Against Out-of-State Debtors
Attachment allows the court to obtain jurisdiction against non-residents or others who cannot be personally served in Colorado. In this way, a court may assert jurisdiction when there are several parties vying for the property.
The Downside of Using an Attachment
Attachment allows you to obtain significant leverage over the debtor. However, it can also pose hazards. The creditor must post an attachment bond to protect the debtor from damages inflicted if the attachment is wrongful. You could be liable to the debtor for any damages caused by the attachment and must reimburse the sheriff for storage and levying expenses (see below).
While attachment may provide significant leverage against the defendant, caution and strict compliance with attachment procedures are essential.
6. Garnishment, Sale, and Levies
A writ of garnishment is the most used method to enforce a final money judgment. The court issues a writ of garnishment that states how much the debtor owes the creditor, and it and demands that the debtor’s bank or employer pay the creditor.
The policy of Colorado law is to subject all the property of a judgment debtor not specifically exempt to the payment of his debts. All goods, lands, and real estate of every person against whom any judgment is obtained in any court for any debt or damages are liable to be sold.
A levy is a way a money judgment is imposed. A creditor may decide which property to levy upon to satisfy his debt, so long as the property is not exempt.
No execution is valid until 14 days after it is submitted to the court (this does not apply to county court judgments). If a judgment is not suspended, by an appropriate order of the court, even if an appeal is pending, the creditor may execute on the judgment, selling and levying the property.
7. Charging Order
When the person who owes you money owns an interest in a partnership – such as an LLC, LCA, and so on – you can collect from the partner’s interest in the company to pay off the debt.
A charging order is obtained by applying to the court which issued the judgment, or to any other court.
The charging order itself should include provisions on the following subjects:
- Requiring the partnership to pay to you (the creditor) the partner’s full share of any distribution from the company, whether or not the partner normally draws his full due.
- Prohibiting the partnership from making any loans until the judgment is fully satisfied. This prevents the partnership from getting around the charging order by making loans to the partner and from making indirect distributions to the partner through loans to other partners or related parties.
- Prohibiting the partnership from acquiring any capital assets, preventing the squandering of cash that might otherwise be paid to the partners and their creditors. It also prevents the partnership from acquiring the debtor/partner’s house and assuming his mortgage obligation.
- Prohibiting the partnership from selling or hiding any partnership property.
- Requiring the partnership to deliver important documents and reports such as tax returns, the partnership agreement, and books of account to the judgment creditor.
The court also has the power to appoint a receiver of the judgment debtor/partner’s share of the profits and other money due or to become due to him in respect of the partnership. In all events, however, the partner’s rights under the exemption laws as regards his partnership interest are preserved.
Get Help to Collect a Judgment
The rules to collect a judgment are complex. The time limitations and restrictions are very specific. Our attorneys can help you work out a detailed plan to recover your money. Call 303-688-0944 to set up some time to talk to an attorney. We provide a free, 30-minute case assessment.