Collecting a Judgement? 82
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."
Take them back to court (Score:5, Informative)
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.
Re:Take them back to court (Score:2, Informative)
Re:Take them back to court (Score:2, Insightful)
No, I'm not a lawyer.
Re:Take them back to court (Score:2)
Re:Take them back to court (Score:1)
Of course, this is the de facto rule. Every place I've read that also says something to the effect of "Don't chance this on the courts. Even though it's yours, SPECIFY it's yours in the contract."
But he has at least SOME leg to stand on.
Re:Take them back to court (Score:4, Informative)
Because by default the copyright belongs to the person who actually wrote the code. The only way that can be changed is through a contract, and if the customer hasn't fulfilled their part of the bargain, the contract doesn't mean jack. Quid Pro Quo is the basis of all contract law, and it means they can't ask you to give something up without giving you something in return.
The contract issues have been litigated, but they haven't been resolved, and that's exactly the reason it would be going back to court.
Really, having the Sherrif go in and seize some of their stuff for sale at auction is the best way to go, since that's already specifically allowed for in the ruling. If he wants to really shaft them he can try to have the contract declared null and void due to their non-payment and go after them for copyright violation, but that's more hassle than I think I would want to deal with, and definately requires a lawyer. Another option is to go with a collection agency, but I think I would go back to court first in order to have the cost of using a collection agency added to the damages, although I expect that would have a good chance of being dismissed.
Then again, I would have asked for more than $1400 in the first place, at the very least adding the court costs (small claims is cheap, not free) and billing for the time spent persuing payment at the contractual rate, including an estimate of the time spent in the court room. After all, they've made that a cost of developing for them, and they should pay for that. I'm betting that would have just about doubled the damages, which would have basically payed for the collection agency.
Then again, I have the benefit of seeing my dad deal with these kind of things, so I've learned to anticipate these kinds of issues.
Other options for going back to court are to attach their income (probably called something else in this case, basically having the money taken directly out of their account and they don't have a say in it) or freeze their bank accounts or put a lein on the business. There are all kinds of fun things you can do.
Non-court options are the Better Business Bureau, which someone else mentioned. I like this one personally, my wife complained to the BBB about the dealer we bought our first car from, who kept jerking us around and trying to change the contract, and the next day the manager was calling up ready to clean the soles of her shoes with his tongue in order to resolve the problem. But then I live in a state where the BBB is actually effective, so YMMV.
I also like the idea of putting a black mark on their credit report, and I'd probably do that regardless of whatever else happened. That can be death for a company that small, as often the only way they can grow or even survive through slow periods is by having the ability to borrow money.
Re:Take them back to court (Score:2)
The real fun starts if you can prove (or persuade) that the other party negoiated the contract 'in bad faith;' in other words, that they planned to shaft you from the get go.
Re:Take them back to court (Score:2)
Re:Take them back to court (Score:3, Interesting)
if the contract was not fulfilled then it is void
This is a misconception of contract law.
What does it mean if a contract is "void"? It means that each party is put back in the same position as if the contract had never existed. So in the current case, the company would give back the code and the developer would give back the money he got.
However, in this case the problem was that the developer never got any money. The reason he was able to sue on the contract and win shows that the contract is vali
Re:Options, etc (Score:2)
Re:Options, etc (Score:2)
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
Re:Options, etc (Score:2)
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"
Try this (Score:5, Informative)
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.
Collection Service.. (Score:4, Interesting)
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.
Re:Collection Service.. (Score:4, Funny)
If by "collection agency" you mean a guy like Nicky Santoro (Joe Pesci) from Casino [imdb.com] , then yes, this is good advice.
Contempt of court is no joke (Score:3, Interesting)
They May Be Liable for Legal Fees (Score:5, Informative)
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!
The Slashdot way... (Score:5, Funny)
Do this (Score:5, Informative)
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.
Re:Do this (Score:3, Interesting)
Are you a law student or some sort of legal worker then? They're the only ones I've ever seen who really really want to make sure that they are not giving out legal advice.
Tim
Re:Do this (Score:1)
@04:55AM (#6260555)
( http://slashdot.org/ )
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.
God help anyone who takes legal advice from cpt_kangarooski!
Re:Do this (Score:3, Funny)
Re:Do this (Score:1)
I'm slightly confused: Why should you care?
The way you describe it, it sounds like you get cash calculated after the auction. It doesn't really matter if the sheriff seizes $10,000 worth of junk and sells it for $1,400, or $1,500 dolla
Re:Do this (Score:1)
You really can't just have the sheriff take absolutely everything, unless the debt is at least in the range of what those things would fetch. Seizing gratuituous stuff is basically just mean, and I would suspect you can get in trouble for it.
Ditto for valueless nonexempt stuff that's nontheless important for the debtor.
Good faith and fair dealing remain important even in a default situation.
Re:Do this (Score:4, Funny)
Look, I simply don't get this, and it's pissing me off. Cpt Kangarooski, I'm not pissed off at you, but I'm going to use you as a launching board for my rant. So please don't take any of this personally, especially seeing as your comment was genuinely helpful.
When there's an article about ANYTHING then everybody is a self-proclaimed expert. Physics? Experts. Astronomy? Experts. Computers? Experts coming out the fucking woodwork. Everybody has an opinion about EVERYTHING on Slashdot and everybody is a freaking expert.
Yet I don't see disclaimers stating "lack of professional experience" about anything except legal questions. I never see "I'm not a Java developer, so don't rely on this, and for god's sake seek professional help from Bill Joy before acting on these words, but... ". No, what you normally get is a self-proclaimed expert acting as if they were standing alongside Bill Joy and helping him nut out the hard bits. Similarly, if there is a question about evolution or religion (or even worse... evolution *and* religion) then suddenly everybody is both a Nobel Prize winner for biology and the Pope's right hand man. Nobody ever sticks a disclaimer at the start saying "my only experience with biology was in 9th grade HS and I don't even know what an ordainment means".
So why the double standard for legal advice? Why is that 90% of the comments to this Ask-/. started with "IANAL" or something similar? Nobody is stupid enough to think that you are a lawyer, and even if they are that stupid that's their own damn problem. You're not going to be held liable for bad legal advice given under a PSEUDONYM on a PUBLIC BULLETIN BOARD when NO MONEY HAS EXCHANGED HANDS. Please, no more redundant "IANAL" disclaimers, unless you're going to start saying "IANA CEO OF MICROSOFT" and "IANA PERSON WHO HAS ANY CLUE ABOUT BIOLOGY" as well.
Re:Do this (Score:1, Informative)
Because it's not illegal to give programming advice without a license.
Re:Do this (Score:2)
It's not illegal to give legal advice without a license. It's only illegal to practise law without a license. There's a fairly significant distinction between the two.
The interesting cases are when somebody misrepresent themselves. For example if you ring up a lawyer's firm and get free advice from the secretary, because you mistakenly believed that she was licensed, then the secretary is in the shit.
But if you free advice from
Re:Do this (Score:2)
No but most of us have Ausperger's, which is pretty much the same thing.
Re:Do this (Score:1)
I anal before a post and get away with it, wouldn't you? i mean, come on, its almost as good as working at the bait shop by the lake, and coming home and telling all your friends you're the master baiter.
Re:Do this (Score:3, Informative)
Even after I graduated law school, it was still illegal for me to give legal advice, until I received my bar results, and was sworn in.
Nowadays, I know that part of the reason for the bar is to control the legal market, like a license. But it has always been true that you had to pass a qualif
Re:Do this (Score:3, Interesting)
If it's illegal then non-lawyers should not be giving legal advice even with the disclaimer "IANAL". However, consider this case [usatoday.com]:
Re:Do this (Score:1)
Uh, is this meta-legal advice on how to avoid culpability in giving legal advice?
Re:Do this (Score:2)
First, I laughed my ass off at that paragraph.
Second, as a major contributor to both the "Well, let me tell you what I think..." and the "Ask a lawyer, dumbass..." fronts, the explanation is simple. The potential downside to bad legal advice in even
Re:Do this (Score:4, Informative)
Re:Do this (Score:1)
As someone who has been on the losing end of a lawsuit, I can testify that this statement is very true. About the only garnishments you can't avoid are those done by the government from funds owed to you by the government. Otherwise there are any number of techniques one can employ to avoid garnishments. Sorry, I won't list them here, I'm too lazy.
Re:Do this (Score:3, Funny)
writ of garnishment (Score:4, Informative)
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!
Sell the debt. (Score:2, Informative)
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 w
Re:Sell the debt. (Score:4, Interesting)
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.
In Colorado you can basically take it all, and they have 10 days to file with the court to recover exempt equipment. Also in CO "essential" equipment can be exempt. IOW, they have 10 computers, the sheriff takes them all, the court will give them back the 1 with their QuickBooks file. Also make sure you know how much the stuff goes for on eBay, both so that you know how much to take and so you can show up at the sheriff's auction and bid up to that amount, if needed in order to prevent a bargain hunter from buying it all for $10. Be prepared for them to throw a fit, stand your ground, and don't wind up taking only enough stuff to cover 1/4 of the debt (ahem, speaking from experience here). Don't count on this of course, but the sheriff's department told my attorney that it's not uncommon for a company to send someone to the bank, accompanied by the deputy, to get a cashier's check rather than have their property seized.
It's harsh, and it's cruel, and I think personally I would struggle with the morality of it
WTF??? Companies know how much money they have in the bank, how much coming in, and what their expenses are. They knew they didn't have the money to pay this guy and let him keep working because they wanted, in effect, to steal his work. Yes, they were probably hoping that enough new sales would close that they'd be able to pay their bills, but they had to know there was a chance they'd wind up screwing him. Now on what plane of reality is there any possibility of a moral issue with collecting the debt?
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.
Yeah, I'm involved in a long-running attempt to collect from a company that has gone to great lengths to avoid paying their debts (transfer of assets to a sister company in another country, leaving the original US company defunct with all the debts, and forming a new US company with the same executives and employees to continue the development work on behalf of the foreign company). There's no direct way to shut them down, but soon enough they'll find themselves on the receiving end of an action that will force them to pay or guarantee that they'll never be able to sell their product in the US nor get another dollar from investors. The most ridiculous thing is that I've told them exactly what I'm doing, and they're just ignoring me. I guess they think I'm bluffing...
Winding Up Order? (Score:4, Interesting)
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.
Re:Winding Up Order? (Score:2)
Re:Winding Up Order? (Score:2)
Now, if our political processes ever allowed for good ideas like this to be implemented, I'd go out an vote or something. Oh well.
Re:Winding Up Order? (Score:2)
It's not that we have the wrong politicians in office, it's that we have any of them there at all.
"Winding Up Orders" are a bankruptcy issue (Score:2)
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 [insolvency.co.uk].
This is all based on ancient tort law which the US
Re:"Winding Up Orders" are a bankruptcy issue (Score:2)
What you describe, sounds to me like if I was owed $1000 by a million dollar company, that company could still be forced to shut down (presumably with the other $999,000 being split to the shareholders).
This simply doesn't happen over here. Nothing can force that compa
Hire a judgment executor... (Score:1)
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.
Collecting a Judgment (Score:5, Informative)
That's all there is to it.
BTW. IAAL
Ask Somewhere Other Than Slashdot (Score:3, Informative)
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.
Re:Ask Somewhere Other Than Slashdot (Score:2)
Yes, but then none of us would know the scoop. Plus, fellow geeks who have been through it may provide advice that wouldn't turn up in an afternoon at the library.
That's not to say people shouldn't do their own research, of course. But when I'm reading in the "Ask Slashdot" section, I think questions like this are great.
Glad you picked /. where all Nebraska lawyers hang (Score:2)
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 [nolo.com] (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 fail
Re:Glad you picked /. where all Nebraska lawyers h (Score:2)
Telco Story (Score:5, Interesting)
Re:Telco Story (Score:1)
Let me get this straight: this guy legally acquired real estate for $1 when he was owed a debt of less than $2000 (avg small claims limit) and yet gave up ownership of that building for the sum owed? Did SF real estate just take a huge nosedive or what? Or is he just insane?
Re:Telco Story (Score:2)
Re:Telco Story (Score:1)
Hire a biker! (Score:1)
Then you give $400 to the biker and everyone is happy.
Have a nice day,
GFK's
Nolo Press has a bunch of stuff on this... (Score:2)
Nolo Press (Score:2)
My thoughts (Score:2)
You need state-specific advice (Score:2)
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 sho
Step 1 - do some research.. :) (Score:2)
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 yo
I have seen this work (Score:1)
Collecting on your small claim (Score:1)
IAAL (sorry) (Score:1)
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 t
Collecting the Award, not finding another cause (Score:1)
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 do
Recording (Score:1)