Working With a Creditors’ Rights Attorney
Frequently Asked Questions
1. I have a judgment. What can a creditors’ rights attorney do to help me collect it?
First, a creditors’ rights attorney can help you locate a judgment debtor and determine whether the judgment debtor has any ability to pay a judgment.
If a judgment debtor cannot be located, an attorney can subpoena or submit written materials to a judgment debtor’s family and friends to force them to answer questions under oath about the location of the judgment debtor and the judgment debtor’s ability to pay a judgment.
Once a judgment debtor is located, a creditors’ rights attorney can obtain a court order requiring a judgment debtor to appear and answer questions under oath about his or her assets, debts, income and all other relevant financial matters.
A creditors’ rights attorney has many tools and techniques to collect a judgment from any assets that are discovered. If a judgment debtor is working, a percentage of his or her wages can be garnished. If the judgment debtor has any personal belongings, those personal belongings might be able to be attached (think seized and sold). If the judgment debtor owns any real estate, the judgment can be converted to a judgment lien and the lien can be used to foreclose the judgment debtor’s property.
2. Does a judgment lien encumber all property a person owns?
First of all, a judgment lien encumbers only real estate. Further, a judgment lien will only become a lien on an interest in real estate that is
- owned by the judgment debtor
- at the time the lien is filed
- in the county in which the lien is filed.
A judgment lien does not attach to any property the judgment debtor acquires after the judgment lien is filed and it will not affect any property owned by the judgment debtor in another county. Of course, a judgment lien can be transferred to other counties.
3. How long does a judgment lien last?
A judgment lien will maintain its priority for only five years before it expires or “goes dormant.” If a judgment lien is revived before it goes dormant it is extended and will maintain its priority and enforceability for another five years.
So long as a judgment lien is revived every five years, it can be maintained indefinitely. If a judgment lien goes dormant it can still be refiled or revived within ten years of when if goes dormant but it is then treated as a new judgment lien and it loses all priority it had before it went dormant.
4. Is there a homestead exemption in Ohio?
If the judgment is for money owed for health care services Ohio law allows a debtor to hold one piece of real or personal property exempt from execution or collection if the property is used as a residence for the debtor or the debtor’s dependent. For all other kinds of judgments, Ohio law allows every debtor to claim a monetary exemption, up to a maximum value of $132,900 (plus an adjustment for inflation), in one piece of real or personal property that the debtor or debtor’s dependents use as a residence. However, unlike other states, this monetary exemption does not shield the debtor’s property from foreclosure and the debtor must affirmatively assert the exemption to receive the benefit of the exemption.
5. If I have a judgment against someone and they refuse to pay me won’t they go to jail?
No. It is not illegal to be broke or to refuse to voluntarily pay a civil judgment in Ohio. The burden is on the judgment creditor to collect a civil judgment.
Even if you have a judgment against a millionaire, they may legally refuse to pay the judgment, thereby forcing the judgment creditor to take action to collect the judgment from their assets. Of course, people who can pay a judgment usually do pay to avoid additional court costs and interest charges that accrue on judgments, as well as to avoid the hassle and inconvenience of further court proceedings and having their bank accounts, wages, and other assets seized.
On the other hand, if you get a judgment against someone who honestly has no income or other assets from which to pay a judgment, your options are rather limited. You can still take legal action and obtain court orders to investigate the judgment debtor’s finances but so long as the debtor complies with the court orders and does not commit perjury, there is very little that can be done. A creditors’ rights attorney would say that such a person is “judgment proof.”
Thus, a judgment debtor can be incarcerated for perjury or for failing to comply with court orders but not for refusing to voluntarily pay a judgment or for simply being insolvent.
6. Can I go bankrupt on less than all of my debts?
Bankruptcy is, initially, an “all or nothing” procedure. If you seek a discharge of your debts in bankruptcy, you must list all your debts.
However, you can reaffirm certain of your debts, meaning they will not be wiped out in bankruptcy. Usually these are debts for property or things you want to keep and on which the creditor has a lien, such as your home (mortgage) or car (purchase money loan). Other debts may not be dischargeable in bankruptcy, such as debts arising out of fraud or intentional misconduct, student loans, alimony and child support, and certain taxes. A creditors’ rights lawyer can assist you in determining which debts are dischargeable in bankruptcy.
7. If I have a judgment, can I get a court order grabbing the debtor’s paycheck?
The debtor’s wages can be seized to pay a judgment, to a limited extent. An amount equal to 75 percent of the minimum wage for each pay period will be exempt from seizure. The remainder can be ordered to be paid into court by the employer. This is known as wage garnishment or wage attachment. Only one creditor at a time can garnish wages of the debtor. Wage attachment orders are good for 6 months and a debtor cannot be fired for having his wages attached by only one creditor.
8. How can I contact a creditors’ rights attorney with Harrington, Hoppe & Mitchell?
You can start by contacting Neil D. Schor, chair of the HHM creditors’ rights practice group, by email or by phone at 330.744.1111.