Execution of a Judgment, or Off With His Head!


You went through the whole process of litigation and won, or you were lucky enough to get a Default Judgment shortly after issuing Summons for money owed to you. Now what? Now the Execution process begins. Named for the all too common sentence handed down when someone was found guilty of a crime in days gone by, thankfully today's version is a little less extreme.

The successful Plaintiff (or Judgment Creditor) might have a Judgment against the debtor, but that does not mean that the debt will be paid there and then. Unfortunately it can take a long time to actually get any money out of a debtor, even after you have a Judgment. Plaintiffs should be aware of this.

Execution is a process which can take anything from a few weeks to a few months or longer depending on the debtor's ability to pay his/her debt. This is why attorneys will caution clients who want to go ahead with litigation if the debtor doesn't have money to pay the debt: because even if you have a Judgment, it won't help you if the debtor doesn't have any money to pay, or any goods to sell in order to settle the debt.

However, if you have the ability to wait, the good thing is that a Civil Judgment remains valid for 30 years. This means that while the debtor might not have any money to settle the debt now, you can always wait a few years and then go after him/her again.

The attached pdf [click here] sets out the process and sheds some light on the nuts and bolts of the execution process.

A few points to note with regards to the process as set out in the pdf, include the following:

• The Judgment Creditor must supply his attorneys with the correct physical address at which the Sheriff can Attach goods belonging to the Debtor. If the Sheriff arrives at a given address and is told by the residents or people working there that the goods at the premises do not belong to the Debtor, the Sheriff cannot remove the goods. The Sheriff will send the Warrant of Execution back to the Judgment Creditor, or his attorneys, will charge for the time spent and a new instruction will need to be sent to the Sheriff with a different address.
  
  Alternatively, if the Judgment Creditor instructs the Sheriff to attach the goods in any case, the person claiming to be the owner of the goods can bring an Interpleader Claim to Court asking the Court to recognise that the goods do not belong to the Debtor and that it should be released from Attachment. Again this leads to unnecessary waste of time and money. (However, while it does lead to more time and money spent, the latter approach may draw out the Debtor when a family member, friend or colleague is affected by their actions.)
  
  
• In limited circumstances the Court will allow goods to be Removed at the same time as when the Attachment is done. This means that instead of first Attaching, and then Removing the goods only on instruction at a later date, Attachment and Removal is done on the same day. If a Judgment Creditor wants to do this, a specific application needs to be made to Court to show that if the goods are not Removed immediately, there is a real threat that the Debtor will destroy or do away with them in some or other way.
  
  Removal of someone's property is a serious issue and the Court will only allow it to happen without warning, if there is a very good reason to do so. For instance, the Debtor is busy immigrating and is busy packing his movable property to put on a plane to New Zealand.
  
  
• Instead of following the execution process set out in the pdf attached, there is also the option to obtain an Emoluments Attachment Order or a Garnishee Order to satisfy the debt. While this is a topic for a different Grey Space, in short, it means that either a part of the debtor's salary or a debt owed to the debtor, is attached and paid over to the Creditor to settle the debt.

If you need assistance with any of these issues please give us a call. We will be happy to advise on how best to proceed.

From the team
MA Cooper Attorneys
With Energy and Experience, giving you Expression