Posts Tagged ‘Judgment’

Someone owes me money, how do I get it? part 3 — collecting the debt

Tuesday, April 17th, 2012

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Once the court has granted you a judgment, you now need to collect on that debt. You and the debtor may be able to come to an agreement about payment, which will be the easiest way to get your money.

You may want to hire a ‘debt collector’ who will handle this part for you and who will know the laws and follow the rules of the Fair Debt Collection Practices Act (FDCPA).

Another option is to collect the debt yourself. As long as you are collecting a debt that is owed to you personally and you are doing things yourself, using your own name, you are not bound by the rules of the FDCPA. However, even if you don’t need to follow all of the rules, you might want to consider reading over the FDCPA rules on what can and can’t be done to collect a debt or you might find yourself in front of the judge on a harassment charge.

You might be able to get a court order to tell a third party that they need to give you some money that would normally be given to the debtor. This process is called a ‘garnishment’ and there are rules about how much of the debtor’s funds may be given to you.

The most common type of garnishment is when a debtor garnishes the wages of the debtor and a portion of the debtor’s wages are paid to the creditor instead. There are rules about garnishment of wages and limits on how much of a person’s wages can be withheld.

You might also be able to garnish the funds in the debtor’s bank account. Again, there are special rules about what can be garnished.

You may also be able to force the debtor to give you some of his or her personal property to satisfy the debt. This process is started by filing ‘Debtor’s Interrogatories’ which is a process in which the debtor needs to appear and tell you about the assets he or she owns, where those assets are located, and how much each of those assets are worth. Sometimes these are ‘big’ assets like a house or a car, and sometimes these are smaller assets like a TV or a watch or a ring.

Once you know what assets are available, you can ask the court to have the sheriff seize and sell the assets and give you the money from the sale.

Or, you might be able to put a lien on the asset which means that if the asset is ever sold, you will be paid before the debtor receives his money from the sale. Of course, this works best for assets like a home or a car where you have the ability to record your lien and where the record is reviewed before the sale is completed.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Someone owes me money, how do I get it? Part 2 – the Trial

Saturday, April 7th, 2012

We have all seen TV shows and movies where there is a trial with the Judge, the attorneys, the jury and the court reporter. In Virginia, the only required people are the Judge, the person bringing the charges and the person answering the charges. If the case is being heard in the District Court there is not even a place for a jury to sit, and the parties are often standing right in front of the Judge.

In a criminal trial, the person bringing the charges is either the prosecutor or the police officer. In other words, the ‘state’. In a civil trial, the person bringing the charges is called a ‘plaintiff’ and if somebody owes you money, you would be the ‘plaintiff’.

The person who is answering the charges is called the ‘defendant’ whether it is a criminal or civil case. In our example, that would be the person who owes you the money.

The Judge is the person who makes the decision, and he or she makes that decision based on the facts of the case as they are presented at the trial, and how those facts fit into the existing laws.

In the case of the Warrant in Debt that was discussed in Part 1, you have probably already presented the ‘Bill of Particulars’ which tells the defendant why you think they owe you money, and the defendant has probably already provided the ‘Grounds of Defense’ which tells you why they think they don’t owe you the money. These documents give the Judge the outline of the case, but you still need to provide evidence so the Judge can make a decision.

The evidence can be documents, things, or testimony of people that have knowledge of the facts of the case. There are special rules which control what evidence can be admitted for the Judge to review.

Even if you are not an attorney, you are going to be bound by the rules of evidence when you are in a trial. This is another reason why it is sometimes helpful to have an attorney instead of representing yourself. The main things to remember are that the evidence needs to be relevant and truthful.

If the evidence is testimony of a person, that person will need to raise his or her right hand and swear or affirm that the testimony they will give is the truth. If the person gives untruthful testimony while under oath, they can be found guilty of perjury, which is a criminal offense all by itself.

Oral testimony is usually given as a series of questions and answers. Remember that there is no arguing! If you think the person is not telling the truth, you can ask another question or ask the same question in a different manner, but you cannot get into a shouting match like you did when you were a kid.

Also, remember that a person can only provide evidence about what he or she saw, heard, or said themselves. They cannot testify that ‘Susie told me…’ because that is called ‘hearsay’ and the judge can’t use that as evidence when making the decision.

If the evidence is a ‘thing’ you will need to first prove that the ‘thing’ is what you say it is before it can be introduced. This is called ‘laying the foundation’. For example, if I wanted to introduce a copy of the contract, I would first ask ‘I’m showing you a document. Is this the contract that was signed by you and the defendant’?

Each side gets a chance to put forth their evidence and then the Judge will allow each side to make a statement about why they think they should win. Then the Judge makes the decision.

In Virginia, you have 10 days in which to appeal any decision by a District Court Judge. If either side notes an appeal, the whole trial will be done over again in the Circuit Court before a different Judge. You don’t need to present exactly the same evidence at the appeal trial, but a lot of the evidence will be the same. You might also change your tactic a little based on what the other side did in the District Court trial.

In our example, if the Judge decides that the person does owe you the money, and there was no appeal, you will now have a ‘judgment’. You won! But the judgment is really just a piece of paper saying that the other person owes you some money. You can’t usually take this piece of paper to the gas station or the grocery store to buy things. Actually getting the money can take some additional steps.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Someone owes me money, how do I get it? Part 1 – Warrant in Debt

Sunday, April 1st, 2012

A number of people call me when someone owes them money and they don’t know how to get paid.

If the amount of the total debt is under $25,000 I suggest that people go to the General District Court and file a ‘Warrant in Debt’. This is how you start the process in Virginia. The ‘Warrant in Debt’ is a form that lists the person who owes you the debt, the reason they owe the debt, and the amount of the debt. There is a fee for the filing of this form with the court, and there is a fee to have the form given to the alleged debtor by a Sheriff. You can also use a private process server, but in Virginia having the document served by the Sheriff is less expensive.

And yes, you can add the cost of the fees for the ‘Warrant in Debt’ to the total amount owed.

The ‘Warrant in Debt’ needs to be served on the person who owes you the money and you and the debtor must show up in court on the designated ‘return date’. At the hearing on the ‘return date’, the judge will ask the debtor if he/she agrees that they owe the money. If they say ‘yes’ the judge will enter a judgment for that amount and you now have a legal piece of paper saying they owe you the money.

If they dispute the claim for the money, the judge will set a date for a trial where you need to prove how much is owed and why. They will, of course, try to prove that they don’t owe the money. This trial is in front of the judge and after hearing all of the evidence and testimony from both sides, the judge will make a decision as to whether or not they money is actually owed.

If the debtor does not show up at the hearing, you can ask the judge to enter a ‘judgment’ for the amount you had entered on the form.

If you don’t show up for the hearing, the judge will generally dismiss your case.

Usually, if the debtor shows up at the hearing and disputes the amount, he/she will ask for ‘pleadings’ which include the ‘Bill of Particulars’ that you will need to provide to the debtor with a copy to the court, and a ‘Grounds of Defense’ which will be provided by the debtor to you and to the court. The judge will give you due dates for these documents and you will need to make sure that these documents are received on time or your case can be dismissed.

There are parts of this process that you may be able to do yourself. You can read about why you may need a lawyer here.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Statute of Limitations for Child Support?

Saturday, February 4th, 2012

About a year ago, I posted that there was really no statute of limitations on the payment of child support. That was true at the time based on the Virginia Court of Appeals interpretation of the law as published in the case of Adcock v. Department of Social Serivices, 56 Va. App. 334, 693 S.E.2d 757 (2010).

Mr. Adcock was ordered to pay the back child support, and he appealed that decision to the Virginia Supreme Court.

In November of 2011 the Virginia Supreme Court issued their ruling in the case of Adcock v. Department of Social Services, 282 Va. 383 which reversed the ruling of the Virginia Court of Appeals and says that since the child support obligations are set and cannot be modified after the date on which the obligation is due, any payments that were due and unpaid were judgments that are subject to the 20 year statute of limitations.

What does this mean? This means that the judgment to pay child support for any given month ‘expires’ 20 years from that month unless something is done to extend that judgment.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Posted in Family Law, Support | No Comments »