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Chapter 20 twenty enforcement of judgments civ lit 2nd
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Chapter 20 twenty enforcement of judgments civ lit 2nd
1.
Civil Litigation: Process and
Procedures Chapter Twenty Enforcement of Judgments
2.
Enforcement of Judgments
The legal team’s litigation responsibilities do not end until the judgment is collected & distributed Plaintiff & Defendant become judgment creditor (to whom the money is owed) and judgment debtor (who owes the money) Because of counterclaims, etc., either party can be owed damages Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 2
3.
Enforcement
Federal and many state rules require waiting 10 days after the entry of judgment before beginning enforcement The judgment may be further stayed, however, for posttrial motions & appeals, around 30 days after the judgment entry Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 3
4.
Collection Methods
Non-adversarial Collection letter with verification information is sent to the judgment debtor May contain a satisfaction piece, to be filed once the debt is paid May result in the debtor (e.g., an insurance company or corporation) processing the demand and issuing a check Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 4
5.
Authorization for Distribution
The paralegal may prepare a statement for the client, an Authorization for Distribution Based upon the initial fee agreement Anticipated amount to be collected Deductions for expenses of litigation & attorneys’ fees Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 5
6.
Typical Schedule of
Distribution Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 6
7.
Adversarial Proceedings
If the judgment debtor fails to respond to the collection letter, the judgment creditor may Use the state court system to enforce a state court judgment Use the state court system to enforce a federal court judgment, since the state has jurisdiction over the assets needed to satisfy the judgment Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 7
8.
Full Faith and
Credit The state court will recognize the validity of a federal decision (within its geographical boundaries) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 8
9.
The Collection Process
The state system will apply its own laws to the collection process Execution Levy Garnishment Replevin Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 9
10.
Replevin
A court process that permits the judgment holder to actually take back a specific item Sometimes referred to as a court- ordered repossession Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 10
11.
Garnishment
Usually against wages Permits judgment creditor to serve a debtor’s employer and the employer must usually deliver a portion of the debtor’s wages States have many forms of garnishment rules and some states do not permit it at all Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 11
12.
Levy
Process of identifying property which may be the subject of an execution sale Levying is method of identifying the debtor’s claim against certain of the debtor’s property Preliminary step leading to a sale of such property Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 12
13.
Execution
Sale, usually at auction, of debtor’s goods to satisfy judgment States have specific rules about how this process is conducted Process is carried out by judicial officer, often a sheriff or constable Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 13
14.
Uniform Enforcement
of Foreign Judgments Act Simple, uniform process of lodging foreign judgments for collection by a state court A foreign judgment is Any judgment, decree or order From any court of the U.S. or other court entitled to full faith & credit (sister state court) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 14
15.
UEFJA
Requires An authenticated or certified copy of the judgment Usually docket entries An affidavit stating the name & last known address of the judgment debtor A filing fee The foreign judgment becomes a judgment of that court Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 15
16.
Registering a Foreign
Judgment Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 16
17.
Execution on the
Judgment The registered judgment can be collected by execution In order to satisfy the judgment, a law enforcement officer can proceed against property of the judgment debtor by Taking possession of it (seizing it) Attachment Sequestering Levying against it Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 17
18.
Exempt Property
Generally, execution can proceed against real or personal property Some property is exempt, in order to afford the judgment debtor the means of continuing a trade, or for necessaries Tools of the trade A percentage of income exempt from garnishment Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 18
19.
Satisfying the Judgment
The debtor can pay the debt or the property may be sold Costs of the sale are deducted from the gross proceeds – schedule of distribution The remainder is given to the creditor Sale nets more than the judgment – debtor is refunded the overage Sale nets less than the judgment – creditor can proceed against additional property (deficiency) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 19
20.
Locating Assets
Interrogatories in aid of execution Questions concerning location of the debtor’s assets Addressed to banks, brokerage houses, other financial institutions Paralegals can research Public records for land transactions Internet for stories of windfalls Internet for employment information Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 20
21.
Judgment Proof Debtors
Usually researched as part of intake, the defendant’s assets are a factor in evaluating a case (cost/benefit analysis) A debtor may ultimately prove to be “judgment proof”, perhaps because of a change in circumstances, and immediate collection is impossible due to lack of assets Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 21
22.
Post-Judgment Interest
Varies by jurisdiction, e.g., Not available Tied to the market rate of interest Set statutory amount Justifies “waiting out” a judgment proof debtor Must renew or revive the judgment according to the rules of the jurisdiction Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 22
23.
Fair Debt
Collection Practices Act Protects the the debtor in collection of consumer debt Personal, family, household purposes Not a business debt Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 23
24.
Interpretation of FDCPA
and Law Firms Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4thCir. 2007) “[T]he FDCPA clearly defines the parties and activities it regulates. The Act applies to law firms that constitute debt collectors, even where their debt- collecting activity is litigation.” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 24
25.
Bankruptcy
Ability to collect from a debtor filing bankruptcy depends on the circumstances Type of bankruptcy Chapt. 7, liquidation – the debt may be settled under liquidation, according to the ratio of assets/debt Chapt. 11, business reorganization Chapt. 13, individual reorganization – the debt may remain valid under reorganization, although it might take longer to collect Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 25
26.
Other Bankruptcy Outcomes
The petition could be dismissed Can request a relief from the automatic stay Once a petition is filed, no debts can be paid except through the court Some debts are non-dischargeable (exempt) If a stay is granted, collection efforts could continue despite the bankruptcy Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 26
27.
Satisfaction
Once the debt is settled, it is important to file a notice of debt satisfaction On the docket of the court of original jurisdiction On the docket of each state court where judgment was lodged Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 27
28.
Satisfaction of Judgment
Form Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 28
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