Obtaining a judgment against a defendant is not the same thing as collecting that judgment and often collecting a final judgment is the real battle in a case. You will often hear attorneys tell their clients that winning a lawsuit can be the easy part and collecting the judgment can be what takes time and considerable effort. When a judgment is obtained at the conclusion of a lawsuit, very rarely will a defendant write a check for the amount owed. Collection of the judgment may also be delayed if a defendant chooses to appeal to a higher court. If the defendant does not voluntarily pay a judgment, there are, however, ways to attempt to collect a judgment after it becomes final.
Many methods used to collect a judgment require substantial information about a defendant. Consequently, after the conclusion of litigation and obtaining a judgment, it may be necessary to engage in post-judgment discovery to learn what assets a defendant owns, where a defendant is employed, or where a defendant banks. Post-judgment discovery is similar to the regular discovery process in that the some process and procedure may be followed, including the use of depositions and written discovery requests. Tenn. R. Civ. P. 69.03. But once an individual has the necessary information, there are various ways to attempt to collect a judgment after it is final, including:
- Garnishing a paycheck if aware of where a defendant works
- Garnishing a bank account if aware of where a defendant banks
- Placing a lien on real property
- Executing on personal property
Execution of judgment. In Tennessee, a judgment entered by a court is generally enforceable for a period of ten years. Tenn. Code Ann. § 28-3-110. All monetary judgments entered by a court are enforceable by execution. Tenn. Code Ann. § 26-1-103. Once you have identified the property owned by a defendant, you must file a judgment lien and obtain a writ of execution. After you have a judgment lien and a writ of execution, you may enroll law enforcement to assist a defendant's property. Law enforcement will sell any property seize and pay you from the sale proceeds. Tennessee law, however, exempts many types of property from the collection or execution of a judgment. In general, a defendant may claim exemption of his or her homestead and certain personal property from attachment and execution of a judgment.
Garnishment of wages or bank accounts. A defendant's wages or bank accounts may be garnished to satisfy a judgment. Again, it is necessary to determine where a defendant has bank accounts in order to garnish those accounts. In addition, state courts in the various counties throughout the state have different and varying procedures for bank garnishments. In garnishing a defendant's wages, the maximum part of an individual's total weekly earnings which is subject to garnishment cannot exceed twenty-five percent (25%) or the amount by which a defendant's earnings for that week exceed thirty (30) times the federal minimum hourly wage at the time the earnings for any pay period become due and payable, whichever is less. Tenn. Code Ann. § 26-2-106(a). In addition, if the defendant has dependent children under the age of 16 who reside in the State of Tennessee, that defendant may also be allowed $2.50 per child as an exemption from garnishment. Tenn. Code Ann. § 26-2-107(a).
Foreign judgment. Tennessee adopts the Uniform Enforcement of Foreign Judgments Act. Tenn. Code Ann. § 26-6-101, et seq. Any judgment, decree, or order of a court of the United States or of any other court is entitled to full faith and credit in Tennessee. Tenn. Code Ann. § 26-6-103. A person seeking to enforce and collect upon a foreign judgment must follow a specific procedure to domesticate that judgment in Tennessee including filing an authenticated copy of the judgment and filing an affidavit containing the defendant's last known contact information. After the proper filings have been made, the court clerk will issue a summons to be delivered and served upon the defendant. Once the foreign judgment has been properly domesticated in Tennessee it is subject to the same procedures as a Tennessee judgment and may be enforced or satisfied in the same manner. Tenn. Code Ann. § 26-6-104. No execution or any other collection process, however, may be initiated until 30 days after the summons is served on the defendant. Tenn. Code Ann. § 26-6-105(c).
Rather than discouraging a potential litigant from beginning court proceedings, litigants should be aware of and factor in the possible time and cost necessary to enforce a judgment when deciding on whether or not to begin litigation and/or an overall litigation strategy. In many cases, post-judgment legal procedures are often required prior to any collection. Similarly, if an individual already has a final judgment, whether it was obtained in Tennessee or a court of another state, but is having difficulty in collecting that final judgment, the help of a knowledgeable and licensed attorney is invaluable.
This blog is not intended to create an attorney/client relationship or provide legal advice. Please contact the author if you have any questions or comments regarding the subject matter.