Enforcing a Legal Judgment - Explained
You recieve a court judgment, how to enforce it
Written by Jason Gordon
Updated at September 24th, 2021
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How does a party enforce a civil judgment?
Collecting on a judgment can be a difficult process. There are three primary methods by which a party may enforce a court's judgment.
- Encumbrance
- Execution
- Garnishment
Next Article: Res Judicata Return to: CIVIL LITIGATION
What is Encumbrance?
A judgment holder may file a lien on the property of the debtor, such as the real property registered to the debtor. The process requires an order from the court that the judgment be attached to available real property. The lien is then filed with the registrar of deeds in the county where the court is located. Holding a lien on the defendant's property clouds title and makes it difficult for the debtor to sell or borrow money against it. Further, the lienholder can file a foreclosure action to sell the property to collect the judgment.
What is Execution of a Judgment?
Execution is the method by which a court's judgment is enforced through the executive branch. Generally, a court official, such as a sheriff or marshal, seizes some property of the debtor, sells it at public auction, and applies the proceeds to the creditor's claim. The responsibility for identifying the property of the debtor upon which to execute is the responsibility of the judgment holder. If the sheriff is unable to identify or locate any property of the debtor, there can be no execution and sale of the property.
- Note: The court may hold a special proceeding to inquire about the assets of the debtor.
What is Garnishment?
Garnishment is similar in nature to execution but involves a defendant's employee wages. It entails having a portion of the debtor's wages paid to the court, which is then released to the judgment holder. This process requires an order of garnishment from the court that the judgment holder can provide to the debtor's employer. The employer is legally obligated to withhold the ordered funds or risk contempt of court.
These methods vary in degree of effectiveness. Encumbering property does not immediately ensure payment. Executing on the property and selling it is only available if the defendant owns the property. The garnishment of wages provides greater certainty of payment but only if the debtor is employed.
Related Topics
- Who are the parties to a lawsuit?
- What is standing to sue?
- Venue
- What is personal jurisdiction?
- What is a class action?
- What are the pleadings?
- What is discovery?
- What is the scope of discovery?
- What are motions and how are they used?
- What are frivolous cases?
- What is the process of selecting a jury?
- What are the steps involved in a civil trial?
- What is the burden of proof in a civil trial?
- How is a civil trial decided?
- Compensatory Damages
- Punitive Damages
- Replevin
- What is joint and several liability?
- What is the process for appeal?
- How do parties enforce a civil judgment?
- What is res judicata
Discussion Question
Do you believe that the above methods of enforcing payment of a debt are fair? Do you believe these methods go far enough to protect the rights of the debtor?
- Some would argue the system of collecting a judgment is too difficult. These folks might argue that the court should hold debtors in contempt for failing to satisfy judgments. Others would argue that the powers afforded individuals to enforce a judgment are unnecessarily broad and oppressive. These individuals focus on the ability to foreclose on mortgages, repossess vehicles, and cease and sell the property.
Practice Question
Diane has a civil judgment against Pete. Pete has refused to pay the judgment, leaving Diane with no other option but to pursue alternative methods of collecting the debt. What are some methods Diane may employ in collecting on her judgment against Pete?
- Diane can file the judgment as a lien on the property of the debtor, such as the real property registered to the debtor. Diane will have to get a court order for the judgment to be attached to available real property. Diane will then file the lien with the registrar of deeds in the county where the court is located. Holding a lien on Pete's property clouds title and makes it difficult for Pete to sell or borrow money against it. Diane can Execute against the property. Pursuant to the process, a sheriff or marshal will seize some property of Pete, sell it at public auction, and apply the proceeds to Diane's claim. Diane will have the responsibility of identifying the property of Pete upon which execution will be carried out. Diane can file for the Garnishment of proceedings to seek attachment of the wages of Pete.
Academic Research
Strong, S.I., Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities (August 21, 2013). 33 Review of Litigation __ 2014, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2013-18. Available at SSRN: https://ssrn.com/abstract=2313855