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Collecting a Judgement?
rk2z asks: "I did some independent contractor work about 6 months ago. I delivered the software as specified in my contract and turned in the hours that it took. I then sent the company an invoice for $1400 which was based upon my contracted hourly work rate. They had paid me in the past so I didnâ(TM)t do anything like withhold source code until payment. To make a long story short, they refused to pay me and I ended up taking them to Small Claims court in the state of Nebraska. I won a judgment for the above amount. The problem is, Iâ(TM)m not really sure how to go about collecting my judgment. The amount is relatively small so I donâ(TM)t want to consult a lawyer, because it not really worth blowing the entire judgment before I even get it. But it's big enough that I donâ(TM)t want to give up on it."
"I looked a couple of law websites like here and
here, but their suggestion were fairly broad.
Does anyone have any experience in going after debtors (without a lawyer if possible)? Is it better to go to a collection agency and blow half the settlement up front? If so does any one know a good collection agency?
Things to keep in mind: [the customer] is a small company (less than 7 employees). They have some property like computers and such, but how do I find out what they own vs. what is leased. Owned property can be seized by the Sheriff and sold at auction. I have tried to contact them about a monthly/weekly payment plan, but have been blown off every time I try to make some progress on the issue. Thanks in advance."
If they haven't paid you then they haven't fulfilled their side of the contract, and they don't own (or otherwise have rights to) the code you wrote. If they're selling/distributing the code that could be a big problem for them as that would be a violation of your copyright, and damages for that are up to $150k per violation. Wouldn't they feel stupid for not paying you that $1400?
I think I would just talk to the Sheriff, though. I very much doubt that you have to know ahead of time what equipment they own or lease. That's the sort of thing that can be sorted out after it's seized.
You might also want to contact a credit reporting agency to see how you can put a black mark on their credit report.
Under capitalism man exploits man. Under communism it's the other way around.
My mother went through this to collect back rent from a tennant:
After securing a judgement, ensure that they're are notified of the judgement and given a small window of time to pay. After that, engage the services of the county sheriff where they are located. Sheriff's have the authority to seize property to settle small claims judgements.
Some people have a way with words, and some people, um, thingy.
Contact a collection service. They take a % of the total (often seems like a large %) -- but remember... getting 80% of 1400 is better than getting 0%, and without professional help that is what you will probably get.
The collection agency has tools to make life hard for those holding out on you (even before you go to court, with the solidity of a court decision, you should be in an even stronger position).
Call today -- and forget about it -- just wait for the check. They specialize in this -- and want their % -- they will get the job done, they deal with hundreds of companies like this everyday.
If you have the judgement, does it specify anything more than an amount? A time frame for example. Here (Australia) these small claims judgements have a time frame - typically 28 days for the payment schedule to be agreed by both parties, failing which the matter goes back to court for a binding ruling. If the debtor fails to pay then they are in contempt of court - a much bigger deal as far as penalties are concerned. Talk to staff at the court - most courts do not like their decisions to be met with contempt.
I know you don't want a lawyer, but face it: lawyers are paid for things like this because they know more ins and outs than you'll ever know.
For example: You want to attach or seize property. Didn't it occur to you to seize their bank account? (I learned this from a lawyer friend.) They've paid you before. Do you remember their bank? You could actually have the funds in their bank account seized. Then you wouldn't have to worry about equipment and selling it to recoup fees.
Another point: In many situations like this, if you hire a lawyer to attach, seize, or garnish their account, THEY can be held responsible for legal fees. Think of it: They don't pay, you sue, they ignore it, you hire a lawyer, the lawyer seizes not only your fee (plus, in VA, you can get upto 9% interest per year), but the lawyer's fee is also seized and deducted from their account.
If this works in your state, then you walk away with your fee and free legal service. They pay your fee and the legal fees for the lawyer that you hired!
Threaten to mention their website on Slashdot. I'm sure a lot of us would be happy to click the link a few times.
"Derp de derp."
Read this part very carefully: This is NOT legal advice. I am NOT a lawyer, much less a lawyer licensed to practice in your jurisdiction.
Furthermore, I have no idea what Nebraska law is like. So there will be things that are different than how I've described them here. Possibly there are additional steps you need to take, or additional things you need to do.
So don't rely on this.
Here we go:
You have a judgment. You need to execute that judgment. Because right now the judgment alone is just a pretty piece of paper. All you are right now is an unsecured creditor. Little more than scum, in the greater scheme of things, no offense. You need to act to raise your status!
Go to the courthouse, find the clerk of courts, and get a writ of execution (aka a writ fi. fa., or writ of attachment).
The writ is an order by the court to the Sheriff ordering him to go find property owned by the debtor that is not exempt from execution (such as the clothes on their backs, were the debtors individuals), take it, sell it at auction, keep enough money to handle their own costs, give you however much is left until you have all you were owed, and then the surplus goes back to the debtor.
Basically, once you've gotten the writ and the sheriff has recieved it, he'll go out there one day in a pickup truck and start taking stuff. Find out when he's going, and go along, so that you can pick out good stuff that is sure to sell at auction for enough money. But make sure that you don't pick out things that are exempt by law; you may need to do some research on Nebraska law to figure this out.
BE AWARE that sheriff's auctions hardly ever get the full value of whatever's being sold. You may want to find something that you PERSONALLY want, have it seized, then buy it at auction, likely for whatever price you were owed. Then use it, or sell it yourself, or whatever.
Note that some property is difficult to load in a pickup truck -- land, for example. Don't worry if the sheriff merely declares that he has executed on it, and maybe tapes on a piece of paper to that effect. It's legal, and the debtor will get in serious trouble if he fucks with that property (selling it or damaging it), including, e.g. contempt of court.
HOWEVER, if the sheriff can't find anything, he will report back to the court (on a document called a return that lists whatever he finds) 'nulla bona.' (at least if he has any respect for tradition)
Anyhow, once the sheriff got something, you are now a judicial lien creditor BUT IN THAT PROPERTY ONLY. Otherwise your status is unchanged.
PLUS there are even more fun things you can do.
Instead of bothering with the writ fi. fa., you may be able to take advantage of your state's turnover statute. This dispenses with the sheriff and is a court order directing the debtor to just give you property in his control, even if not in his posession. And since you can use discovery rules in this process, you can make him tell you, under oath, with penalties for perjury applicable, as to what it is he's got.
If there is real estate in the county, you might be able to have your lien recorded in the county courthouse. This might also be called abstraction. It places a lien on the real property in the county (NOT personal property; that is, land, not pick-up-able stuff). This prevents him from selling it, since anyone who bought it later, until you're paid off, would basically wind up having to pay.
Or if negotiations haven't entirely broken down, you could offer to trade your judgment for a security interest in some specific property (you will be much more likely to want a lawyer for this, as all the p's and q's HAVE to be minded) which basically means you'd have a much stronger claim.
Since, if the debtor goes into bankruptcy, you're in serious trouble. You DON'T want that to happen. It will totally fuck you up.
Additionally, ACT FAST. There is a sort of pecking order. Firstly, sold property pays court/sheriff's expenses.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
IANAL
I have gone through small claims court in Arizona. I have won twice. The difficulty is in the collecting. In the first case, no problem. The second case I am still trying to collect on. Fortunately I have the bank account information and in Arizona, I am able to garnish the bank account (except for a certain ammount) for what is owed. It took hiring a private investigator to find out what happened with the case (county recorder's office lost the paperwork -- keep your own copies of everything!!!) Now, I'm back to using the Court Constable for the serving the garnishment.
Try contacting the Nebraska State Bar for information on small claims court for non lawyers. There should also be somewhere an agency for pro bono work for lawyers. In Arizona, it's Community Legal Services - they have a document that explains in plain English what it takes to go through small claims court and how to obtain your judgement (if awarded).
Good Luck!
design is art - art is design
I'm making the assumption you aren't planning to ever deal with these people again? (heck, it sounds like too many bridges have been burnt for that already)
In that case, the simplest and easiest way to get your money is to sell the debt to a debt collection agency.
The agency buys the debt from you, and from then on it is their problem. And these agencies are experts at getting their money back.
It's harsh, and it's cruel, and I think personally I would struggle with the morality of it, but if you really want the money, and there's no other way to get it, I know that this system works.
Here in the UK a friend was owed money by an agency for some contract programming he had done for them and they wouldn't pay his final invoice. Not couldn't, just wouldn't. As he routinely refers to agents as 'parasites' or 'scum' when in a good mood, he didn't want to mess around and play nice. AFAICR he checked out his legal status first (saw a lawyer about his contract) and then contacted the company threatening them with a winding up order if they didn't pay. This would basically do what it says and end the existence of the agency as an entity - instant extinction, no business able to be transacted etc. - basically a 'nuke the bastards' option, perhaps a trifle extreme but he really doesn't like agents.
Apparently they laughed at him, but when they shared the joke with their legal staff full payment was made immediately.
He can be a little over the top, and he would probably have been happy to take the loss so long as the other guys came off a lot worse, I think he was disappointed that they coughed up.
Did I mention that he doesn't like agents?
I don't know if you have such a mechanism in your state, but if you do a (real) threat to terminate the company is a much bigger stick than garnishing the account - it may be empty, they may just change banks etc. It could be fun to check if you have the ability to do this.
I hereby inform you that I have NOT been required to provide any decryption keys.
I'm not sure how much of a cut they'll take. Probably small since assets for the business will be easy to locate and attach.
Another poster had some great ideas for obtaining a writ of execution and forcing a Sheriff's sale - I would do that if you don't want to hire a professional judgment executor.
Once the judgment becomes final and non-appealable, you get the clerk of the court to issue you a Writ of Execution on the judgment, then take that to the Constable for the precinct in which the company's offices are located. The Writ will cost you about $15 and the Constable's service fee will probably be somewhere around $50.00. The Constable will serve the writ and either bring back cash or seized property, which will then be sold at auction and you get your money from the Constable.
That's all there is to it.
BTW. IAAL
utter rubbish
Second, you're not the first person to face this. In fact, it's a chronic problem with small claims judgements. Did you ask the court? Did you ask the sheriff? Did you ask the county clerk? Why would you ask Slashdot before asking real (omigosh! meatspace!) people who are on the scene with you?
Finally, I'd google a bit...30 seconds' work took me to several links on how to collect.
Advice: on VPS providers
1. Sell the judgment to a collection agency or to someone who went to Dave Del Dotto's get-rich seminar.
2. Find out how to fill out the forms and collect it yourself, say by a) going to the courthouse law library and look it up, or b) reading Collect Your Judgment by Nolo Press (which is based on California law but the principles are probably basically the same).
3. (2) presupposes the judgment debtor has a paycheck, bank account, job or real or personal property you can get at. Sometimes if all else fails you can file the judgment as a lien with the county and get paid, with interest, years later when they die or sell their house.
Also, read your contract and maybe it provides for attorney fees! If so, see an attorney!
I recall reading some years ago, that a guy in San Francisco was owed money by the local telco (at the time Pac Bell). He won in small claims court, but Pac Bell still ignored him. To make a long story short, the sheriff filed the paper work to sell one of Pac Bell's downtown buildings in order to collect the money. No one else showed, so the the guy ending up buying it for $1. At that point, he got Pac Bell's attention. He ended up selling them back their building for the amount owed plus court costs.
[Insert pithy quote here]
Hire a big fat ugly biker to go at that compagny and tell them to pay up right now. Works all the times!
Then you give $400 to the biker and everyone is happy.
Have a nice day,
GFK's
1) Take the judgment to the sherriff and get a lien against their property.
2) Then they can't sell any property without paying you.
Besides their great book on collecting small claims judgements, the Nolo website has a whole bunch of information on this.
You mentioned the Nolo Press web site, but you dismissed their advice as "broad". Did you find their collecting a court judgment web page? Seems pretty specific to me.
When you go back to court, make sure you ask for legal expenses. I think they can still do that at this point. It wouldn't hurt to consult with a lawyer. Knowing what you can and can't do would be helpful.
Had one of these here in Florida. We used a law firm to write what they call a "Firm letter" (from law firm, we were told) which could have been named a "Rottweiler letter" from its tone. By prior agreement we were charged one hour's service for this, or $150. It worked and I am told that it does 50% of the time. So, you would risk $150 against a probable return of $700, all things considered. Most of the other advice you've gotten seems like it would work, but this is a cheaper first step and does show the judge later on, if you have to go to court, that you have been businesslike in your actions to get your money. Good luck!
Since you have a judgement, your next task is to find some asset and get the appropriate authorities to take it for you. Generally, you go after motor vehicles, real property, and bank accounts. If you can find a bank account with money in it, that's usually the easiest.
Collection agencies will do all this for you, for a percentage of the judgement. Shop around; rates vary. Against an operating business, you should be getting a high percentage of the judgement from a collection agency.
If you want to find a business's bank account, have someone buy something from them and look at the cancelled check when it comes back.
This happens much more often than you'd think. This is a flaw in the US legal system. If someone steals $1k-$5k from you, it costs you more than $1k-$5k in effort to collect. You can (maybe) collect the amount that was stolen from you, but you usually can't collect for the time/effort wasted. The practical thing may be to let it go.
Many businesses are aware of this, and screw individual customer or contractrators, knowing that it isn't practical for someone to collect.
"Winding Up Orders" are a bankruptcy issue.
Following a petition for Winding Up Order, either the company pays the debt or the court issues the winding up order. If successful, the court takes over the company's fiduciary responsibility. The court appoints a 'Liquidator' or 'Administrator', who is usually a specialist accountant from the private sector who attempts to rebuild or sell-off the company assets and pay it's debts.
UK Insolvency Law and FAQs.
This is all based on ancient tort law which the US shares with the UK, a quick search turns up this. Which highlights a substantially similar process for the US.
Pay someone to have them killed. Works for me.
Step 1 - Do some research online. I did some Google searching and found quite a bit of information published by the state of CA on how to do collections.
Here is a brief summary of how it works in CA.
You can either: get a collection agency or do it yourself.
Collection agency will take a % of the $s.
If you want to do it, you have a number of options. Pretty much all of them start with getting what I believe is called a Writ of Execution. It is a two page form that needs to be signed by the courts.
Once you have that, you can:
Collect against their bank account (you may need to fill out another form, then the Sheriff will go to the bank and get the money. You don't get it immediately -- they have a time period where if they can show that the $s are protected (i.e. social security type stuff) then they get it back.
If they run a retail store front that has cash on premises, you can get the sheriff to go and empty out their cash registers.
If you know how there clients are, you can get an order so that the clients will give you the money directly (talk about an embarrasment to them!).
You can also order them to have to sell assets to raise you the money.
Evolution: love it or leave it
>Or turn it over to a collection agency, pay probably 20%, I would suggest a smaller, local agency that >actually deals with legals, not one of the big call centre in india type places like NCO for example. Speaking of whom.... does anyone know how to STOP them from calling? The previous owner of my phone # had numerous unpaid debts. We got all the collection agencies to stop calling within the first 2 weeks... except NCO. They simply won't stop calling. I've tried a tele-zapper type setup (play the disconnected line tones for their auto-dialer). I spoke with multiple agents, one of whom stated that he thought I was the debtor trying to hide behind a false name, etc.
I have seen businesses get around this though. In the case of a restaurant my father was working at, the person who one the judgement was the owner's ex-wife and rather then see her get any money, the restaurant owner gave away free food all day. Then there are other cases such as the time my father worked at Dennis Rodman's restaurant and he walked in and paid the judgement to my father in cash.
I would check to see if the county or state in which you live offers a similar service.
- In most jurisdictions, legal costs do not include your side's lawyers fees. Just things like filing fees, disbursements, etc. This keeps one side from, say, charging $10,000.00 in lawyers fees for a $50.00 debt. Also, you contract probably didn't mention anything about extra fees/charges if/when things went sour.
- Refusing to pay a civil judgment is not contempt of court. This is a civil case, and you don't get criminal judgements from civil suits. This is because you have the option of enforcing the judgment (go see a bailiff and put a siezure before judgment on their stuff).
You have a few choices here:- Write off the full amount
- Ask a bailiff/sheriff to execute the judgment/size
- Negotiate a settlement
- Assign/sell the debt to a collection agency
Since they're giving you the brush-off, it's likely they're doing this to others as well. Don't be surprised if they're just stringing everyone along so they can collect a few more paychecks while they burn throught the last of their (or their investors) capital. Even if they were to eventually write you a check, it's most likely rubber - it's going to bounce.You've been screwed for $1400.00. Consider it a cheap (I mean VERY cheap) investment in your continuing education. You now know the three rules:
The 3 rules of contracts:
- Get it in writing.
- Get it in writing.
- Get it in writing.
Of course, there's the 4th rule - which is, it doesn't matter what the contract says, if they are not honorable, you shouldn't be doing business with them.Sorry for the bad news.
Refusing to pay a civil judgment is not contempt of court. This is a civil case, and you don't get criminal judgements from civil suits. This is because you have the option of enforcing the judgment (go see a bailiff and put a siezure before judgment on their stuff).
OK I should have been more specific. First of all, what I write refers to British not US law, though the two systems have a great deal in common. Contempt of court is classified as civil offence. But the punishment can include being sent to prison - where you count as a "civil prisoner". But try telling someone that you were sent to prison but never committed a crime... the distinction here is overwhelmingly semantic rather than practical. (The main practical difference is that civil prisoners can wear their own clothes, can continue to vote, don't have to work, and aren't eligible for early release..)
In the UK at least, the main differences between the two is that civil prisoners can wear their own clothes and vote, but aren't always for both types is the same -- in particular, you can be sent to prison for certain civil contempt, including failure to comply with a judgment. Effectively, that makes contempt a criminal offence Well, I can't speak for US laws but in the UK while strictly speaking there are criminal and civil contempts, the difference is really semantic. You can go to prison for a civil contempt of court, Refusing to comply with a judgment is a pretty serious contempt.The author of this post asserts his moral rights.
I've collected on several small claims, and it's not that hard. First, you need to have a sheriff's deptartment officer serve the company with a demand-for-payment. The company can ignore it, but if they do, you can place a mechanics lien against any property they own, making it impossible for them to sell same. Best bet is to get a lien against a company bank account, from which the sheriff's officer can do the extracting. I pursued a junk hauler named Reuben Smoth for years after a bag of nails fell off one of his trucks, flattening my car tire. After a few years of trying to execute a small claims judgment in my favor, the sheriff's officer told me, "Son, you really aren't going to give up until you get that money, are you?" My diligence and sincerity were what pushed the deputy to complete the job. I attached a small bank account of the Rev. Mr. Smith's, and collected not only the judgment amount, but interest amounting to 100% of the original claim-plus-costs. If you want to make this an adventure, show up at the company's next shareholder meeting and have a friend perform service on the CEO when he comes to the podium. This is great fun. I once worked for a private detective and was hired to serve a comedian when he went onstage. Be creative and enjoy! You'll get your money eventually, so long as the company has assets, but it sometimes requires patience and persistence. The sheriff's officer should be able to give you some pointers. Good luck! Rick Ackerman
I am a lawyer (sorry) and whether you own the copyright in the code probably turns on what is in the contract with the customer as well as the pattern of dealing in previous contracts. As a general rule, the person who wrote the code owns the copyright unless they did it while working as an employee of someone who paid them to write it. In that case, it is a work for hire and the employer owns the code.
If it is not a work for hire, you may very well have assigned the copyright to the customer in the contract. A copyright assignment has to be evidenced by some writing but there is no single set of magic words. Is there something in the contract that clearly says you assign the rights to the source code to the customer? If so, you they own the copyright even if they didn't pay. You don't go home empty handed because you still own the right to sue them on the breach of contract.
Even if you still retain the copyright, the customer is probably not infringing it. By writing the program for them, at a minimum you probably granted them a non-exclusive license to use the code. You still have a right to sue them on the contract but not on the copyright. Google on Kozinski and "Effects Associates" to see how this works.
Finally, you should take everything in this posting and everything you find on the Internet about law with a grain silo of salt. You have no way of knowing whether I am really am a lawyer and even if I am, I'm not admitted in your jurisdiction and even if I were, I'm not your lawyer. Ask a lawyer in your own state.
If he doesn't try to enforce the judgment, that ends it.
If he does try to enforce the judgment, then he has to go by the civil procedures laid out in the debtors' jurisdiction.
If, for example, the debtor doesn't have the assets to cover the judgment, he doesn't go to jail for failure to comply. His failure, in that case, is reasonable.
What happens next depends upon"
- How much time/resources the plaintiff wants to expend to try to collect a useless judgment (for example, forcing the debtor into involuntary bankruptcy)
- What assest the debtor does in fact have
- Whether other creditors have established prior liens on the aforementioned assets
Unfortunately, as I also pointed out, he's learning a lesson we've all had to learn the hard way - "Even if you have it in writing, ultimately it all hangs on the integrity of the people involved." That he didn't even have it in writing really doesn't enter into it at this point, since he's getting the brush-off.Giving legal advise ourselves here, are we now? On a PUBLIC BULLETIN BOARD for chrissake! Just kidding. But just think of what could happen... A chinese state attorney might read your post. It might just happen to be illegal for anybody to give legal advise on the internet in PUBLIC BULLETIN BOARDS. That state attorney may also know of a secret deportation treaty China has with the US to handover internet criminals (thanks to Clinton). Two weeks from now US Marshals come and put you on a plane to China. They mumble something about you being a terrorist and insteads of you talking to a lawyer you are put on a plane to a distant country where you will be made welcome by a couple of orientals in grey suits who scream at you in a concrete room 24 hours a day for a week. Oh and btw... they never turn off the flurouscent light in that room and often "forget" to feed or water you for days (at least you think its days).
Then all of the sudden the door slams open and they put you in a suit. For the first time you risk looking at the guards a little closer... Could it be? Could it be that you're in communist China? You get away with it. I mean looking at the guard. They're taking you to court so they can't risk beating you bloody just now. Then you're loaded on a bus where they inject you with something. You feel good as a warm feeling spreads all the way from your chest to your crotch. You smile. The guards smile. By now you're pretty sure you're in China with all the funny writing on the red transparents that are spanned across all major street intersections. It doesn't matter. You've never felt better in your entire life.
You're taking to this impressive big building somewhere in the city. Someone explains to you that this is the People's Court and you're a counterrevolutionary terrorist and that he's your lawyer. You're start sort of dozing as the drug takes full effect on your system during the court session. All you remember is that the judge asked you for the address of your immediate family because he wants to send them a bill for ammunition. You understand that the court wants your family to pay for a bullet but somehow that sounds so ridiculous to you, you think you just didn't understand the high pitched shrill voice that has been shrieking at you for the last ten minutes.
They put you on another bus with a dozen other men and women who are sitting with their heads bowed. The drug is wearing off and you're starting to get a headache. You don't feel so great anymore, actually you're just about to lose it. You start to get up but the guards on the bus slam a rifle butt right into your face. Meehow hang! Hang me chan! I don't know what the guard said just now, and neither do you but it sounded indeed threatening enough for you to back down and hide your bloodied face in your hands. All of the sudden the bus arrives at a stadium where the guards herd you and your fellow commiserates of the bus and make you all kneel in a row. There are thousands of people on the bleechers and the public address system is shrieking out words of anger and contempt in a foreign language while the crowd roars and starts chanting "Ho chan meow han! Chan me han! Chan me han!". Again I don't know what they're shouting and neither do you but it doesn't bode well... Finally you hear the sharp crack of a rifle and see someone on your left crumble to the ground scattering brains and blood. You begin to cry and you don't stop crying and pleading with the guards until the very end.
IANAL BUT THIS COULD HAPPEN! YOU COULD FACE AN UGLY DEATH IN A FOREIGN COUNTRY JUST BY GIVING LEGAL ADVICE ON THE INTERNET
Are YOU lawyer enough to say this couldn't happen? Are YOU, huh? ARE YOU?!?!
Ok, from what I get, you want to collect on the award, not find another cause of action (ie. Copyright infringement).
You will likely need to place a lien on the company (e.g. a mechanic's lein). That way you can have legal claim to get the property you need via the sherrif (and the subsequent sherrif's sale of the property). Unfortunately, I'm not licensed in Nebraska so I can't really help you there.
Another option is to assign the judgement to a collection agency. You'll have to take pennies on the dollar (e.g. $0.70 on the $1.00) but you'll get your cash now and won't have to worry about the long process of collecting (and would be cheaper than hiring an attorney).
Stop undressing me with your eyes. I'm ugly naked.
I think you have to take you court papers to the County Recorder in your area, and have them help you fill out a form to record the jugement into the country register. Some counties have special officers that help you get paid for small claims court judgements, and they are among the 'recorders' who work in the big city-county hall- not the court system. Then they legally owe you the money, since the jugement is recorded. Im not no lawyer, but I've been thru similar sityashuns.
aiai aaia aiai aaia aiai aaia aii i iai iai iai iai iai ii aiai aia