Did you ever hear that you can’t squeeze blood from a turnip? Well, that is true! You may have spent considerable time and expense to obtain a judgment against a debtor that owes you money, but you have likely wasted your time if that debtor is judgment proof. It is best to assess whether the person you are suing has anything worth money. Does the debtor own real estate? Does the debtor have a job? Does the debtor have an automobile worth enough to reimburse you for the selling costs or more? Does the debtor have any asset you can attach? If your answer is no to all of these questions, then frankly, what’s the point in getting a judgment? The debtor can also file for bankruptcy and make your unsecured debt go away forever. However, if your answer to any one of these questions is yes, now we have something to talk about!
The Oregon Revised Statutes provide for multiple remedies to get at a debtor’s assets. ORS 18.270(1) provides at any time after a judgment is entered a judgment creditor may serve written interrogatories relating to the judgment debtors property and financial affairs on a judgment debtor. The interrogatories may be personally served in the manner provided for summons or may be served by any form of mail addressed to the judgment debtor and requesting a receipt. Service by mail under this subsection is effective on the date of mailing. You must notify the judgment debtor that judgment debtors failure to answer the interrogatories truthfully shall subject the judgment debtor to the penalties for false swearing and for contempt of court. In other words, the creditor gets to ask a bunch of written questions of whether the debtor has a job, where, contact information for employer, what they own in terms of vehicles, real property, other assets, etc. The debtor must truthfully answer those questions and get that information back to the creditor within 20 days, and the interrogatories must be notarized with the debtor’s signature. Failure of the debtor to do this means the creditor can commence proceedings for contempt of court. Circuit Court judges will issue a warrant for the debtors arrest if the debtor fails to appear at this show cause hearing. A creditor can find out a lot when interrogatories are received back from the debtor. You could also do a debtor examination under ORS 18.265 to find out what the debtors assets are and where they work, where their checking account and savings accounts are, etc., but that’s more time consuming than using interrogatories to elicit the same information.
Following the information the creditor receives back from the debtor, if the debtor has a job, you can now file a Writ of Garnishment on their employer to receive payment out of their paycheck. Follow the statutory process for doing this with notice to the debtor and their employer. See ORS 18.830-18.850.
If you learn through your interrogatories that the debtor owns tangible personal property you can file a Writ of Execution and have the local Sheriff seize the property. See ORS 18.860 – 18.196.
Be sure to follow all the procedures when taking personal property through a levy under these rules. One type of personal property, you can levy upon is a personal vehicle. If you learn through the interrogatories or a debtor exam that the debtor owns a vehicle with enough value that you could realize some satisfaction of your judgment if that vehicle was sold, then you could do a Writ of Execution on the vehicle. You will have to pay fees to the Sheriff’s Department for the towing and 10 days of storage, advertising and auction sale. Those fees are generally as high as $1100.00. Those sale fees can be added to your judgment before the proceeds of sale are subtracted from your judgment in partial or full satisfaction. The Writ of Execution can be ex parte, meaning the debtor never knows you are about to seize their vehicle. Be sure that there are no other lienholders on the vehicle first so that seizing the vehicle makes it worth your investment in the cost of seizing it. You can find out that information through the DMV by requesting a copy of the current title. Determine first that your debtor actually is the registered owner of the vehicle and that there are no lienholders. Under ORS 18.878(1)(c) you could save some storage fees of the vehicle prior to the sale by securing the personal property at the debtor’s location, but I personally think this is risky because the debtor may destroy the property or secret the property, even though there are criminal statutes that should prevent that. People in desperate situations sometimes do desperate acts regardless of the consequences. I prefer the element of surprise in seizing a vehicle. In other words, the Sheriff just comes out one day and tows their vehicle away to a secure storage yard. The debtor will receive documents to challenge the seizure, but do not always challenge. The debtor also gets a $3,000.00 exemption, but not if the vehicle you are seizing was the vehicle the creditor loaned money on and that unpaid loan was the subject of the judgment. See ORS 18.305. If the personal property you are seizing is located inside the debtor’s residence you can file a motion for forcible entry to allow the Sheriff to use reasonable means to seize the property, which includes forcible entry, under ORS 18.887(1).
The point I’m making here is that once you have a judgment, the Oregon Revised Statutes provide many remedies with some real teeth in collecting on your judgment. If you are aggressive in going after your money, AND the debtor has anything, chances are you are going to get it if you are diligent in using the law to help you find the assets and seize them. The key to this is whether your debtor has a job or any assets. If not, all you have is a judgment, and you can’t squeeze blood from that turnip.
If you need any guidance or assistance in going through this process to help you realize some money from your judgment, Deborah K. Vincent, Attorney at Law can help you. Www.oregonlawyeronline.com