Saturday, December 10, 2011

Enforcing Judgments for the Pro Per

Unlike governments and large corporations, most often the small business or individual who represents himself or herself in court who won a judgment has limited means at their disposal to enforce their judgment. Many times, the Pro Per Judgment Creditor has won a small claims judgment or limited civil judgment. In Arizona, these are procured through the Justice Court. Having little or no experience in court proceedings, most Pro Per Judgment Creditors do not know what the assets are of the Judgment Debtor (the party who owes the judgment) and are unable to immediately collect their judgment.  Here are some means of enforcing the judgment which may be available to the judgment creditor.

Recording a judgment lien. For a judgment lien to be effective against real property, it must emanate from the Superior Court. Justice Courts can hear matters regarding possession of, but not title to, real property. A Justice Court judgment may be elevated to the Superior Court by utilizing the transcript process (ARS §22-246). If the judgment is moved to Superior Court, all subsequent proceedings must occur within that court.

Conducting a Judgment Debtor Examination. When the Judgment Debtor's assets are unknown, one way for the Judgment Creditor to find them is through the Judgment Debtor Examination. This is known as a Supplemental Proceeding under the statutes. During a Supplemental Proceeding, the Judgment Debtor (once served) is ordered to appear in court on a specified date and time to answer questions about his/her/their assets and liabilities.

The Order to Appear for Examination (or ORAP) is the document served which compels the appearance of the Judgment Debtor. Failure to appear by the Judgment Debtor may result in a Civil Arrest Warrant (ARCP Rule 64.1, et seq.). A “civil arrest warrant” is an order issued in a non-criminal matter, directed to any peace officer in the state, to arrest the individual named therein and bring such person before the court. (ARCP Rule 64.1(a))

The ORAP is usually served with a Subpoena Duces Tecum (or SDT). The SDT, served in conjunction with the ORAP, directs the Judgment Debtor to bring to court certain records pertaining to his/her/their assets and liabilities. The documents which may be indicated on the SDT are wide ranging.

Per ARS §12-1631(B), "No judgment debtor shall be required to attend out of the county in which he resides", accordingly, an examination of a Judgment Debtor may be conducted in accordance with ARS §12-407, et seq.

Writs. A Writ is the instrument which conveys the authority of the court to exercise its jurisdiction over the assets of the Judgment Debtor.  Per ARS §12-1558(A): All property, real and personal, not exempt by law, and all property and rights of property seized and held under attachment or garnishment in an action, are liable to execution. Per ARS §12-1558(B): Shares and interests in a corporation, and debts and credits, choses in action, and all other property, or any interest therein, legal or equitable, not capable of manual delivery, may be levied upon and sold under execution.  In Arizona, there are two general types of writs issued for civil judgment enforcement:  the Writ of Garnishment, and the Writ of Execution.

Writ of Garnishment. If the employment (or self-employment) of the Judgment Debtor is known, generally, a Writ of Garnishment (Earnings) is served. This initially requires the Garnishee (employer) to withhold up to 25% of the Judgment Debtor's available earnings.  If a bank, brokerage or stream of income from sources other than employment is known, a Writ of Garnishment (Non-Earnings) is used. This enables the Judgment Creditor to capture available monies at the time of service.  In utilizing either (or both) types of Writ(s) of Garnishment, certain requirements and restrictions apply. 

A Writ of Garnishment must be followed up by obtaining a Judgment Against Garnishee to have any effect. Other states have varying remedies; Arizona is quite different.  Arizona's civil writ procedures have been most often compared to Texas, in that both require a Judgment Against Garnishee to be enforceable.   

A Writ of Execution allows the physical taking of property from the Judgment Debtor or other person(s) in possession. A Special Writ of Execution is used for the taking of certain, specific property (such as a specific automobile, collectible item, etc.). A General Writ of Execution is used for the taking of property which may be used to satisfy the judgment.

The Writ of Execution may only be served (executed) by the Constable (for Justice Court cases) or the Sheriff (for Superior Court cases). There are certain drawbacks to utilizing the Writ of Execution, including trespass laws. If, at the time of execution, the Constable or Deputy Sheriff is told by the Judgment Debtor or other person that they are trespassing, the levying officer generally departs without taking the property.

Turnover Order. This is an infrequent tool used in Arizona judgment enforcement (it is commonly used in other states, such as California). At the time of the Judgment Debtor Examination, property of the Judgment Debtor within the presence of the Court (Judge) may be ordered to be turned over to the Judgment Creditor. This is separate and apart from a Writ of Garnishment or Writ of Execution. ARS §12-1634(B) reads, "The court may order any property of the judgment debtor not exempt from execution, in the hands of any person or due the judgment debtor, to be applied toward satisfaction of the judgment."

Third Party Examination. If a third party is known or suspected of harboring property of the Judgment Debtor, the Judgment Creditor may request that a subpoena be issued to compel the third party to attend and bear witness as to the whereabouts of such property, or to turn over such property.  ARS §12-1634 reads, "(A)Witnesses may be required to appear and testify before the court or referee upon any proceeding under this article as upon trial of an action. (B)The court may order any property of the judgment debtor not exempt from execution, in the hands of any person or due the judgment debtor, to be applied toward satisfaction of the judgment."

Serving the legal process.  Under Arizona statute and rules of court, only a Process Server, or the Constable or Sheriff may serve the types of legal process (documents) discussed here.

We hope the forgoing helps you in plotting a direction you wish to proceed. If you would like your legal documents prepared, give RapidRPS a call at (877) 472-7431.  RapidRPS is an Arizona Certified Legal Document Preparer.  See our website at for more.

Disclaimer: This article was written for educational purposes only. Nothing in this communication should be considered legal advice. The reader should do his/her own research to verify the accuracy and applicability of the information presented.  At RapidRPS, we not only serve legal process, but also prepare legal documents for enforcement of your judgment and other purposes. Neither RapidRPS nor any of our employees, assigns or agents are attorneys. We do not render legal advice. If you require legal advice, please consult your own counsel.