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Preparing Your Case
Organize the case
before going to court. Plan on what you will say and organize your
testimony and arguments so the Judge will be able to understand
clearly what happened and why you have been injured or wronged.
Bear in mind you will have to convince the Judge not only that
you are right but you are also entitled to a specific sum of money
from the Defendant.
Collect all documents related to your case;
receipts, cancelled checks, estimates, bills, contracts, photos,
etc.
If you have a witness that is necessary to prove
your case, you have the right to subpoena that witness to guarantee
their appearance at your hearing. You may obtain the subpoena forms
from the Clerk's office . The Court requests that the completed
subpoena be turned into the Clerk's office at least five (5) days
prior to the hearing. You must pay the court $5.00 for each witness
subpoened. Out-of-state witnesses cannot be compelled to attend.
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Going to Court
At the
hearing, the Judge will swear in all parties and witnesses; hear
testimony and receive evidence.
Again, BE ON TIME. Court starts promptly at the
time scheduled.
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Present Your Best Case
Each side gets a chance to present
testimony and evidence. Present your case in an orderly manner.
Include all relevant facts and be sure to state the amount you
are claiming and explain how you arrived at this amount. Show the
Judge any documents or other evidence you have.
The other side will have a chance to question
(not argue with) you on any points you have raised in your testimony.
The Judge may also ask you clarifying questions. Remember, you
are under oath and must answer truthfully and as completely as
possible.
If you have witnesses, they will then have the
chance to explain what they know about the case. They may also
be questioned (cross-examined) by the other side. After the Plaintiff
has finished, it is the Defendant's turn.
You will have the chance
to question each witness for the other side. Do not interrupt
or argue. Permit the Defendant or the witness to complete their
testimony and then the Judge will give you a chance to ask questions.
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Decisions
After the hearing, the Judge will
then file an entry (his decision) with the Court. The Clerk will
mail copies of the Judge's entry to the parties.
After the entry has been filed and if you object
to the Judge's decision, you have fourteen (14) days to file an "objection" detailing
the errors you believe the Judge has made. Send a copy of your
objections to your opponent (or their attorney) when you file the
objection with the Court. If no timely objections are made, the
Judge's entry will be adopted as the final order of the Court.
Within
fourteen (14) days of the filing of the entry, a party may serve
and file written objections to the Judge's entry. If objections
are timely served and filed by any party, any other party may
serve and file objections within ten (10) days of the date on which
the first objections were filed. The objections shall be considered
a motion. Objections shall be specific and state with particularity
the grounds of objection. Upon consideration of the objections, the Court
may adopt, reject, or modify the entry; hear additional evidence;
return the report to the Judge with instructions; or hear the matter
itself. On appeal, a party may not assign as error the Court's
adoption of a Judge's finding of fact unless an objection to that
finding is contained in that party's written objections to the
Judge's entry. The Court may adopt any finding of fact in the Judge's
entry without further consideration. Unless, the party who objects to that
finding supports that objection with a copy of allrelevant portions of the
transcript from the Judge's hearing or an affidavit about evidence submitted
to the Judge if no transcript is available. In deciding whether to adopt
a Judge's finding of fact, the Court may disregard any evidence
that was not submitted to the Judge. Unless, the complaining party
demonstrates that with reasonable diligence they could not have
discovered and produced that evidence for the Judge's consideration.
THE
PARTIES MUST MAIL COPIES OF THE OBJECTIONS OR RESPONSES TO THE
OTHER PARTIES AT THE TIME THEY FILE THE SAME WITH THE CLERK OF
COURTS.
The Municipal Court Judge will review the record
and rule on the objections. The parties will be notified of the
decision of the Court.
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Default Judgments
Small Claims cases are often over
even before they begin. The Plaintiff appears at the initial hearing
but the Defendant does not. The Judge grants the Plaintiff a Default
Judgment. The Court will send a copy of the Default Judgment entry
to the Plaintiff and Defendant. This judgment is just as enforceable
as it would have been had the Defendant appeared, contested the
case, and lost after putting on a spirited defense.
If you want to be sure the Defendant fully understands
what has happened and that you are now a Judgment Creditor, it
is your responsibility to notify them and request payment.
If the Judgment Debtor fails to pay, the collection
lies with a more formal procedure. You may file to garnish the
Defendant's wages or attach the personal property or bank account
of the Defendant. Each of these collection steps requires additional
forms and fees. IT CAN BE A LENGTHY PROCESS, BUT IT CAN WORK.
Before you collect from the reluctant Debtor,
you must first know something about their finances. If you are
already familiar with where the Judgment Debtor banks, works, lives,
does business, etc., you may know enough to proceed with collection.
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Collecting a Judgment
When the party in a case receives
a judgment, it is the responsibility of the Judgment Creditor to
collect from the Judgment Debtor. By way of the judgment, the Court
has confirmed that the Debtor has a legal, enforceable obligation
to pay.
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Satisfaction of Judgment
Once a judgment has been satisfied in full, the Judgment
Creditor files a request for satisfaction with the Court stating
that judgment has been paid in full.
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Lists of Assets and Liabilities
In addition to the standard Judgment
Debtor exam available to all Judgment Creditors, there is an additional,
simplified process that may save considerable time. You may, therefore,
wish to try this before moving to the more time-consuming Judgment
Debtor hearing process.
- Wait until thirty (30) days after the judgment.
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Go the
Clerk's office and ask for a "Financial Statement".
Fill out the form with your case number, the name of the Judgment
Debtor, and your name, etc. (This will cost you $10.00 to file.)
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The
Clerk will mail this form to the Judgment Debtor asking for a
list of their assets, liabilities, and personal earnings.
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The
Judgment Debtor will be given one (1) week to return the information
to the Clerk. They will be informed that failure to respond within
the week could result in a charge of contempt of Court.
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When
the list of assets and liabilities is filed with the Clerk's
office, they will then send a copy of it to you.
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If the Judgment
Debtor fails to return the completed forms to the Clerk's office,
you may file for a "Show Cause Hearing".
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Judgment Debtor Exams; Personal Exam
The Judgment Debtor examination is the court's way of helping Judgment Creditors
learn about the Judgment Debtor's assets...information that then can be used
to collect the judgment. While the by-mail process may be more convenient, you
may find the information you receive is not specific or complete enough to enable
you to proceed with collection. At this point, you may want to consult with an
attorney to aid you in the process.
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Garnishments
If the Debtor is employed, has
a checking account or savings account, you may "garnish" the
Debtor's wages or the Debtor's bank account.
Garnishment is a process
that lets the Creditor claim and take money owed by the Debtor
from another person. For example, the typical employee is paid
one or two weeks after actually earning their wages. The employer
is holding the employee's money during that time and, through the
garnishment process, may be required to pay a portion of these
wages to the Creditor. Garnishment as a process consists of the
following:
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Mail a Fifteen Day Notice of Intent to
Garnish ("Notice
of Court Proceedings to Collect Debt") to the Judgment
Debtor. This notice is not needed for a bank attachment. You
will need to provide the Court with proof of mailing of this
Notice and a copy of the Notice at the time the actual garnishment
is filed with the Court.
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After the fifteen (15) days have passed
and the Defendant has not responded to the "15-Day Demand",
go to the Clerk's office and complete a garnishment form. In
all cases, you will need the correct mailing address for the
garnishee (Debtor's employer or bank). The filing fee for a wage garnishment is $120 for balances over $500 and $60 for balances under $500. There is a $40.00 filing fee plus $1.00 check
to bank for bank attachments for judgments of any amount. All additional
filing fees paid to the Court, may be added to the court costs owed by
the Judgment Debtor.
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When the Clerk's office receives monies from the
garnishee (Judgment Debtor's employer or bank), a check will
be issued to the Judgment Creditor.
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Limits and Exceptions
Incomes from sources such as Social
Security, Welfare, Workman's Compensation, Unemployment Compensation,
etc. are exempt and protected from garnishment. It is also possible
for the Judgment Debtor to block any action taken against a bank
account if it can be shown the money in the account came from these
types of sources (public assistance).
Law regulates the amount that
Judgment Creditors can garnish from a Judgment Debtor at any
one time. Creditors cannot attach the Debtor's entire paycheck
and the most Creditors can obtain during any one period is 25%
of the Debtor's take-home pay.
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Execution
If the Judgment Debtor fails to
pay within fifteen (15) days of the judgment, the Judgment Creditor
may, through the court, seize the Judgment Debtor's property, sell
it, and collect the judgment from the proceeds. This process is
referred to as "Execution on Property".
Although the concept is rather simple, the laws
on execution have made it a bit more complicated. Again, you may
want to consult with an attorney before going through this procedure.
As explained below, execution against personal property to collect
a judgment will usually make sense only when the property involved
is worth considerably more than the amount of the judgment.
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Exemptions
Ohio law defines certain property
as being "exempt" from execution. Prior to processing
an execution, the Judgment Creditor must have some reasonable expectation
that the property to be attached and sold is not exempt.
In the case of personal property (household goods,
cars, jewelry, etc.), the exemptions are defined in terms of the
Debtor's "interest" (in dollars)
in that property.
For example, the law exempts the Debtor's "interest",
not to exceed one thousand dollars ($1,000.00) in one motor vehicle.
That means if the car is attached and sold, the first thousand
dollars ($1,000.00) of the sale proceeds must go back to the Judgment
Debtor. Thus, a Judgment Creditor seeking to collect a $500.00
judgment would gain nothing at all from an execution on a car which
ultimately sold for $999.00. The judgment could not be collected unless the
car sold for at least $1,500.00.
If you have any questions as to whether a particular
item of property you intend to execute upon is subject to an exemption,
you should consult an attorney. An additional obstacle to collecting
your money through execution could arise if the Judgment Debtor
owes money on the property to someone else, for example, a bank.
In that case, you could be second or third in line when it comes
time to collect from the sale proceeds. The proceeds from the sale
are divided as follows:
- First: Any exempt amount claimed by the Debtor;
- Second: Paying costs of the sale itself;
- Third: Paying the judgment;
- Fourth: Anything leftover goes back to the Judgment Debtor.
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Liens
A "lien" (pronounced "lean")
can be placed on real estate owned by the Judgment Debtor, if the
real estate is in Hocking County and was owned at the time the
case was originally filed. The lien must be renewed every five
(5) years. The lien holder, Judgment Creditor, will recover the
amount of the judgment when the property is sold. The procedure
for filing a lien is fairly simple:
- Go to the Clerk's office and ask for a "Certificate
of Judgment".
There will be a $25.00 fee due at this time. The Clerk's office will mail
the certificate to you once it has been completed.
- Take the
certificate to the Clerk of Common Pleas Courts, Courthouse,
1 E Main St., on the 3rd floor. There will be a filing fee
for this filing. For information regarding filing in Common Pleas
Court call (740) 385-2616.
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