The best way to collect on a debt owed is first to obtain a judgment against the debtor.
Exceptions to the Judgment Requirement Before Garnishment
There are special circumstances under which a court could allow a creditor to garnish an account or other asset of a debtor prior to obtaining a judgment, but those circumstances are rare. Courts may allow garnishment before judgment when:
- there is concern that the debtor has or is about to get rid of or hide assets in order to delay or defraud a creditor;
- the debtor has engaged in fraud and the civil action is brought based on this intentional action;
- the debtor has been convicted of a felony for actions giving rise to the claim upon which the civil action is brought;
- the reason for the garnishment is to establish quasi in rem jurisdiction;
- the debtor left the state to avoid service by creditors or defraud them;
- the judgment was validly obtained already in another state;
- the civil action directly arises from the property the creditor is seeking to attach;
- there is no forum in the United States or elsewhere to otherwise obtain the judgment.
When courts do allow garnishment before judgment certain other requirements must also be met, including that application for garnishment must be in writing accompanied by sworn statements and setting forth sufficient basis and lack of harm to the debtor.
In most cases a judgment will have to be obtained before garnishment is permitted.
Obtain a Judgment
The first step toward collecting a debt owed to you by another is obtaining a judgment against that person for the amount you are seeking. A “judgment” is a final decision by a court. Once you have a judgment from a court for a certain amount owed, you can begin the process of collecting that amount.
Docket the Judgment
You must docket the judgment. The court administrator or clerk’s office for the court in which you received the judgment should be able to tell you what is needed to docket the judgment. A “judgment docket” is a list of judicial orders of a particular court, recorded by the court’s clerk, and available for inspection by the public.
The judgment docket provides the ability for interested parties to learn of the existence of the judgment. Recording a judgment in a judgment docket is considered official notice to all parties of the existence of the judgment.
Note: You Must Stop When Satisfied
At any time the debtor satisfies, or pays the judgment, you are obviously no longer permitted to seek collection of that amount – you have already collected. If you agree with the debtor to settle the case in some other way, you also are not permitted to seek collection in violation of that agreement.