Winning a personal injury lawsuit is only one battle in the war to get money a liable party may owe you for damages. The other battle is actually collecting the amount due. If you've tried other methods of collecting a court judgment and have failed, you can try seizing the defendant's assets. Here's what you need to know about accomplishing this feat.
Types of Property That Can Be Seized
While it may sound like you can simply go to someone's house, jump into the person's car and drive off into the sunset, seizing an individual's assets typically requires quite a bit of legal wrangling. The first step is to determine which assets can be seized. This varies depending on the state you and/or the debtor lives in. For example, in Ohio, you can garnish a person's wages, put liens on property such as homes, and take personal possessions such as clothing. In California, you can also dip into the person's safety deposit box and put a lien on a lawsuit the individual may have pending in court.
In general, you can go after the defendant's
- Wages (via garnishment)
- Checking and savings accounts
- Real property such as homes, land, and vehicles
- Personal property such as coin collections, computers, jewelry, audio/visual equipment and books
- Monetary investments including retirement accounts
If the defendant owns something of value, you can generally seize it as long as it doesn't run afoul of any exemptions allowed by the state or county.
Exempt Property and Money
Almost every state exempts certain assets (or the monetary equivalent) from seizure. Typically, these exemptions will be based on federal and/or state bankruptcy guidelines. For example, people in Ohio can exempt up to $3,675 in equity in their vehicles (as of 2014). This means you can't take the person's car if it's valued less than this or if selling the vehicle and paying off the bank note will net you less than this amount.
Social Security payments are exempt from garnishment, and some states will also exempt payments from local public assistance or benefits programs. In New Jersey, for instance, you cannot touch the person's income from public pensions, workers' compensation, unemployment, and certain insurance benefits. For income that you can confiscate, you can typically only garnish up to 25% of each paycheck until the judgment is satisfied.
To find out what type of exemptions the defendant may be eligible for, look up the bankruptcy exemption guidelines in your state. Be aware that if the person is married, the exemption amount may be doubled to account for each person's share in the asset.
Executing the Seizure
If you haven't done so already, you'll need to perform a post-judgment discovery to determine what assets the defendant has available to seize. This is similar to the discovery process that occurs during the court case where you can request the defendant supply information about their finances.
Once you've determined which assets you can grab, you'll need to file the appropriate paperwork with the court. Typically, you will have to wait until the time period for the defendant to file an appeal has expired. This limit varies depending on the type of case and judgment secured and can be anywhere from 30 to 60 days or more.
After filing the paperwork, the court will typically issue you a Writ of Execution. You will then need to give this to the sheriff's department who will either serve notice to the person's employer or bank (for income garnishments), collect the property directly from the defendant (for property seizures), or serve the person with a lien notice (for property liens).
Things to Consider
If all goes well, you'll get enough of the person's assets to satisfy the judgment. Be aware, though, that you may be required to sell the items, take what's owed to you and return the rest of the proceeds to the defendant or other interested party like a co-owner of the assets. This can take require considerable time and expense.
Another issue you'll need to be prepared for is to have the defendant declare bankruptcy in an effort to stop the asset seizure. It's essential that you work with a personal injury lawyer who can help you navigate the legalities of seizing a person's assets to help you avoid the pitfalls and achieve the outcome you desire. Talk to your attorney to learn more about this topic.