Spousal Support: Determining the Amount and Length; How Much and How Long?

Apr 24, 2015

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For years Ottawa County was one of the outlier counties when it came to spousal support. Several years ago, a female judge from Ann Arbor might look at a set of facts and award $3,000.00 a month in alimony for an unknown period of years, and a judge from Ottawa County, looking at the same set of facts, might award $1,000.00 per month for two years. That disparity has been reduced significantly. Today Ottawa County judges award spousal support in amounts and similar to what other counties award.

The main purpose of awarding spousal support is to balance the incomes and needs of the parties without impoverishing either party. Spousal support “is to be based on what is just and reasonable under the circumstances of the case.”

Michigan Courts use the following factors when deciding the amount or length of spousal support: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony; this can mean not only actual earnings, but the ability to earn income, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, and as to fault, the relative value to be given fault and the extent to which particular actions are regarded as fault contributing to the breakdown of a marriage are issues calling for a subjective response left to the trial court’s discretion subject to the requirement that the distribution not be inequitable. (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity.

Sometimes the analysis is not extremely difficult. If one spouse raised the children and the other increased his or her earning potential through education or experience, then a Court will consider that the main purpose of awarding spousal support is to balance the incomes and needs of the parties without impoverishing either party. But, even then the Court must consider all the factors, and not just need.

When calculating child support the State supplies a child support manual and Guidelines that take much of the mystery out of the equation. Come to my office, answer a bunch of questions, I plug it all into a computer program and I can give you a fairly accurate estimate as to the amount of child support.

The same is not true for spousal support (alimony). I use two computer programs to assist me in calculating or estimating spousal support, but they only consider about four factors, not 14. Because they leave out so many of the factors, they offer only the most general idea or assistance in evaluating spousal support. It might be noted that a trial court’s refusal to admit the spousal support prognosticator report into evidence is error, but not necessarily reversible error. It should be further noted, that most trial courts know the inherent limitations of the spousal support prognosticators to use 4 and not 14 factors.

Weighing the factors is not a scientific endeavor. In fact, sometimes the unnamed factor, who is doing the evaluating (ie, who is the judge) is also a critical factor (factor 15?). Come trial day and, if to your surprise you wind up with a visiting judge, you attorney may need to discard prior evaluations or predictions.

It is important to have an attorney who knows the intricacies of spousal support and who knows the predilections of the local trial judges.

What to do if He Wants a Prenup: How is the Spouse with the Smaller Estate Protected?

Apr 24, 2015

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1. What are you getting out of the prenuptial agreement? If it is all one-sided in favor of your prospective spouse, you should retain an attorney to negotiate some benefits for you.

2. If the other side gets to keep his or her pension, 401-K and retirement benefits, what retirement benefits do you keep? Only those worth next to nothing? Retain an attorney so that you also get something out of the agreement.

3. If the other side will increase his or her net worth, while you contribute by facilitating that growth, what offsetting assets will you be receiving?

Retain an attorney that not only knows how to draft a prenuptial agreement, but knows how to negotiate terms that benefit you. Even though you may not be in the driver’s seat, it should not be a take it or leave it proposition.

Ray has prepared prenuptial agreements for someone wishing to protect assets, and has also negotiated on behalf of the one presented with a proposed prenuptial agreement. In one recent case with limited assets, he negotiated an additional provision that resulted in Client being immediately named as the beneficiary of a retirement savings plan worth over $20,000.00.

Steps to Collecting

Collections

Apr 9, 2015

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Review file. Call debtor. Calendar file.
Prepare demand letter; Send letter; Calendar file
Call debtor. Calendar file.
Prepare final demand letter. Calendar file.
Final call to debtor.
Consider if suit should be filed:

Evaluate collectability of Debtor.

Evaluate claim and potential defenses.

Evaluate proofs: witnesses, documents, admissions, etc.

Prepare Summons, Complaint, affidavit, etc.
File suit.
Obtain service.
If Defendant files Answer, skip to step ___ below.
Calendar file for entry of default.
Prepare default and default judgment if no Answer filed.
Obtain entry of default and default judgment if no Answer filed.
Calendar file for exercise of remedies.
Further research as to Defendant’s assets.
Prepare Writ of Garnishment, Subpoena on Discovery, or Request and Order to Seize.
Calendar file for review.
Etc.
See also: https://www.wikihow.com/Collect-Small-Business-Debt

Aggressively collecting debts: https://www.wikihow.com/Collect-Small-Business-Debt

How to Avoid Unnecessary Attorney Fees

General Practice

Apr 9, 2015

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Wooden justice gavel and block with brass

I have offered various suggestions as to how to reduce attorney fees in a divorce before. Being unreasonable, arguing over minor issues, and retaining the wrong attorney will increase attorney fees.

But there is one other approach to avoiding unnecessary attorney fees.

I recall sitting in a courtroom in the 57^th District Court in Allegan several years ago. About six people were waiting to be sentenced. One asked the other why he was there. He replied, “He called me a mother _ _ _ _ _ _, I had to hit him.” All of the other convicted criminals vigorously shook their heads as they agreed with his statement. If that doesn’t strike you as strange, perhaps you will have a difficult time controlling your attorney fees.

Someone else’s behavior does not necessarily dictate how you are to behave. Between stimulus and response is a space, the freedom to think and decide. Victor Frankl put it this way: “Between the stimulus and the response is a space, and in this case lies our power and freedom.” Making good use of that space can significantly reduce your attorney fees and give your power and freedom to avoid many other problems. If you stoke the fires of conflict every time your divorcing spouse says or does something inappropriate, you are not making good use of that space between stimulus and response.

Recently, I had a client showed me some text messages between he and his wife. I had established a good relationship with my client so we could communicate openly. I hesitated a few seconds before explaining the concept of effectively using that space between stimulus and response to think before acting. Those text messages had been created during a period when my client was attempting to reconcile with his spouse. I explained to him that in 40 years of marriage the worst thing my wife had called me was something that most people would consider to be innocuous and not harmful. It certainly would not be considered foul or abusive. There should be a large pause button between the Stimulus and Response. Using that pause button between stimulus and response, can reduce your attorney fees and also reduce the chance of getting ulcers, having a stroke or becoming poor.

Using that space to pause and think won’t happen automatically. Prepare for that space. Contemplate how you want to live and how you want to be remembered. It may help you redefine who you are. Instead of it being Stimulus followed by Automatic Inflammatory Response, make it Stimulus (and then pause and reflect) and you may have a Considered Appropriate Response. Pausing and biting the tongue become easier with practice. You can be responsible. See also and creating space in the practice of your life.

Collecting in a Judgment Obtained in a Different State

Collections

Sep 15, 2014

0 279

If a creditor obtains a Money Judgment in another State against someone who later moves to the Holland, Michigan area, what can the creditor do?

A. Nothing
B. Cry.
C. Domesticate the other State’s Judgment.

If you chose “C”, you made a good choice. Under the full faith and credit provision of the US Constitution, one State must recognize the judgment of another State. (The Full Faith and Credit Clause refers to Article IV, Section 1 of the United States Constitution, which addresses the obligation that States within US have to respect the “public acts, records, and judicial proceedings of every other State.”)

Thus, the Michigan Court must treat another State’s Judgment as good as its own.

To domesticate the other State’s judgment, it must first be authenticated by the Court that entered the original judgment (with a fancy stamp to indicate that it is a legitimate copy and not a fraud). The Michigan attorney then must sign an affidavit stating that the Judgment is in effect and the amount of the judgment without interest. 21 days after the Michigan Court has given notice of entry of the Foreign Judgment, the Michigan attorney can initiate post-judgment remedies such as garnishments seeking to collect the balance owed on the judgment.

We have handled numerous cases wherein a creditor who has a judgment from another State seeks to collect in Michigan and would be happy to assist you. Contact us by phone at 616.396.8883.

Collection Practices: A Creditor’s Perspective

Collections

Sep 14, 2014

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CHOOSING CUSTOMERS OR CLIENTS

Sometimes the best decision that can be made about a prospective customer is to decline to provide goods or services. Standardized credit evaluations techniques need to be in place to analyze the credit worthiness of a prospective debtors and, to the extent that it does not violate state or federal credit regulations, also use your common sense or gut instincts. Don’t accept a prospective business transaction as worthwhile if it is likely that part of your costs will be the unreimbursed costs of attempting to get paid. Also some people, even if they timely pay, are more trouble to do business with than they are worth if they behave as if they are your only customer and frequently complain.

Often there may be a tension between an organization’s marketing/sales department and its credit department. Frequently, the sales staff wants to sell to everyone and credit only wants to sell to those who don’t need credit. There must be a balance that periodically gets reviewed.

Maintain Adequate Records

RETAIN COLLECTION INFORMATION. Make a photocopy of debtor’s check. Record the debtor’s employment information, social security number, and driver’s license number. The more of this type of information you maintain, the easier it is to collect if you have to turn the file over to your collection attorney. Most of this information should be collected initially; some may be collected as you do business with the debtor.

Developing adequate record keeping systems can go a long way in preventing bad debt from developing. Things you need to know:

a. The type of customers that are not paying. Determine if there is a particular branch or line of products or services that you provide that result in collection problems

b. Did something exist that should have caused you to decline the potential business relationship before the debt was incurred? If so, establish procedures to prevent future occurrences.

c. Could the debt have remained manageable if certain safeguards were in place? Was there a point when the debt should have been reviewed by the appropriate department before the debt became too large?

d. Carefully document the debtor’s promises. Often, it is advisable to send a short letter to the debtor specifying exactly what their promise was.

e. When payments are due. Maintain an adequate calendar so that the receipt of promised payments are reviewed on a timely basis. Be sure to notify your attorney if you receive direct payment on a file that was earlier referred to the attorney.

f. Maintain records for future. The client may return someday and documentation concerning complaints, payment history, etc. should be available before you again decide to do business with the client/customer or decide on the amount of a required deposit and credit limits.

Standardize billing and collection procedures

Collect as much as possible as quickly as possible, and maintain good relations with customers. At 30-60 days overdue, every debtor should receive a personal letter (see below) and a follow-up phone call. By 90 days overdue, it is safe to assume that the debtor doesn’t care about good relations and you should stop wasting time and discontinue offering additional credit and further minimize the costs and risks of collection by turning the file over to your collection attorney.

FORWARDING SERVICE REQUESTED. This should appear just beneath the return address on all envelopes you send to debtors. Without that request, bills will be forwarded to a debtor’s new address and you will not be notified that the debtor has moved. Ultimately, the forwarding information expires and you will have a stale address.

SPRA. Keep your collection letters short. Some experts recommend the SPRA approach: (Situation) Your account is past due. (Proposal) Your November payment needs to be made. (Reason for Response) You want to protect your credit rating. (Action-Deadline). Please pay by Wednesday, December 7, 2011.

ABIDE BY DEADLINES. If you tell a debtor that if they don’t pay by the 10th you will then refer the account to your attorneys, be sure your attorneys have that file shortly after the 10th. Debtors will not take you seriously if you demonstrate that your bark is worse than your bite.

a. 1st Overdue billing (30 days):

After an appropriate amount of time has passed for the client to receive the letter, follow up with a phone call to politely inquire about payment. Authorize appropriate person to enter into payment arrangement if payment in full is to be made within next 90 days. If longer, payment arrangement must be approved by supervisor. Always follow up with letter to confirm.

b. Second Overdue billing (60 days):

If no payment has been received by the next billing cycle, send second standard letter. Calendar each file for 10 days; if no payment has been received, call the customer personally. If payment agreement is reached, confirm this with standardized agreement letter.

c. Third Overdue billing (90 days):

If no payment has been received, send third standardized letter (to inactive customers only- there should be no active customers who continue to increase debt unless payment agreement has been reached and confirmed in writing).

Refer to collection attorney on timely basis.

A collection attorney will often get results where in house contacts have been unsuccessful. If your collection attorney works on an hourly basis you will have less reason to delay in turning the file over. As a general practice, never wait more than 90 days to refer the file to your collection attorney.

Close uncollectable files

It may be painful to accept, but some accounts are simply uncollectable. Take your losses and center your attention on files that you believe may pay off. If you work uncollectable accounts, you will inevitably not place the appropriate emphasis on working collectible accounts with the diligence they deserve. Close uncollectable files, especially if the amount is small. Spend time working files that have enough at stake and where the debtor appears to be collectable. Don’t hold the file too long before referring to a collection attorney. Chances of successful collection reduce with the passage of time.

Choosing a collection attorney

One way to avoid bad debt is to have your attorney review your initial contract with your customers/clients. A properly drafted contract may help avoid later problems and reduce the costs of collection by including entireties language, venue provisions, and procedures for objecting to the alleged inaccuracy of invoices.

This office generally works only on an hourly basis so that you are more likely to turn over files before they are stale and while the chances of collection are still reasonably high. Otherwise you may be tempted to retain the file too long because you are attempting to avoid paying 30 -50% to an attorney or collection agency.

Once we have an ongoing relationship with a client we will develop a good feel for how the client wants its debtors treated. That helps us when speaking to debtors by attempting to resolve the case in a manner our client will be happy with. Except with specific authorization, we will not settle your case. Therefore, we will contact our client before accepting a settlement proposal or payment plan.

Because collections are a major part of our practice, we know collection law and will abide by deadlines. An attorney who does not give prompt attention to your collection accounts may do more harm than good by not aggressively pursuing collection while you have discontinued your collection efforts because you have turned the file over. Additionally, an attorney who is not familiar with the technicalities of the Federal and State laws pertaining to debt collection may expose you to civil liability.

Choosing a Collection Attorney

Collections

Sep 13, 2014

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Collecting Accounts with Numerous Transactions

Collections

Sep 10, 2014

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Feel free to use this image, just link to www.SeniorLiving.Org

Clients sometimes ask: “How are we going to prove all these separate individual purchases when we don’t have any independent recollection of each separate transaction?”

Creditors are helped by a statute that provides that a creditor does not have to prove each separate purchase, only that the debtor was presented with a copy of an account and the debtor failed to object to the account’s inaccuracy thereby creating an account stated. It then becomes an implied agreement, between parties who have had previous transactions of a monetary character, that the account representing such transactions are true and that a balance struck is correct, together with a promise, expressed or implied, for payment of the balance. Leonard Refineries, Inc. v. Gregory, 295 Mich 432 (1940). The essential element is a statement of account, or a striking of a balance between the parties on a settlement.

The theory of an account stated is that the minds of the parties have met when an account has been rendered by one and received and accepted without objection by the other. Love v. Ramsey, 139 Mich. 47 (1905). An account may be stated between any parties who have had previous transactions, or even a single transaction of a monetary character. Thomasma v. Carpenter, 175 Mich. 428 (1913). However, there must have been a prior dealing between the parties that resulted in an antecedent debt or demand between the parties concerning which a balance is struck. Fellows v. Thrall, 85 Mich. 161 (1891). If there has been a balance struck between the parties on the settlement, the nature of the original transaction is generally immaterial. Albrecht v. Gies, 33 Mich. 389 (1876). It may have been for the sale of land or other property or for services. Stevens v. Tuller, 4 Mich. 387 (1857).

An account stated need not be in any particular form, but it is sufficient if there is disclosed some existing antecedent debt or demand between the parties respecting which a balance was struck. Albrecht v. Gies supra. Typically, it is in the form of a statement of account to a debtor, which the debtor endorses as correct.

The items constituting the account need not be shown. A writing is unnecessary, for a transaction may become an account stated by oral settlement, without any written undertaking or acknowledgment, and may be proved by unsigned writings. Watkins v. Ford, 69 Mich. 357 (1888).

Whether the parties have assented to a sum as the correct balance due from one to the other depends upon the circumstances. Kaunitz v. Wheeler, 344 Mich. 181 (1955). Assent may be shown by an expressed understanding, or by words or acts in the necessary improper references to be drawn from it. Consequently, assent is shown by (1) a debtor’s endorsement on a statement of account of its correctness, (2) by giving credit for the amount of the account on a bill rendered by the debtor, or (3) by making payments on the account without objection. Bewick v. Butterfield, 60 Mich. 203 (1886); Corey v. Jaroch, 229 Mich. 313 (1924). It may even arise by failure of a debtor to object within a reasonable time to statements of account rendered to him. Hawley v. Professional Credit Bureau, Inc. 345 Mich. 500 (1956).

An account stated that conforms to the legal requirements may only be impeached for fraud or mistake. The burden of proof is on the one who seeks to impeach an account stated for fraud or mistake.

Federal and State Credit Regulations

Collections

Sep 9, 2014

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PROHIBITED ACTS

Many laws regulating collections do not apply if you are collecting your own debt or if the action is undertaken by a regular employee collecting accounts for one employer if the collection efforts are carried on in the name of the employer. Some of the laws also do not apply to an attorney handling claims and collections on behalf of a client and in the attorney’s own name. “Consumer” or “debtor” may mean a natural person obligated or allegedly obligated to pay a debt or under different laws may generally mean a purchase for personal or household use.

Prohibited Conduct Includes:

a. Communicating with a debtor in a misleading or deceptive manner, such as using the stationery of an attorney or credit bureau unless the regulated person is an attorney or is a credit bureau and it is disclosed that it is the collection department of the credit bureau.

b. Making an inaccurate, misleading, untrue, or deceptive statement or claim in a communication to collect a debt or concealing or not revealing the purpose of a communication when it is made in connection with collecting a debt.

c. Misrepresenting the legal status of a legal action being taken or threatened or the legal rights of the creditor or debtor.

d. Alleging that accounts have been turned over to innocent purchasers for value.

e. Communicating with a debtor without accurately disclosing the caller’s identity or cause expenses to the debtor for a long distance telephone call, telegram, or other charge.

f. Communicating with a debtor, except through billing procedure when the debtor is actively represented by an attorney, the attorney’s name and address are known, and the attorney has been contacted in writing by the credit grantor or the credit grantor’s representative or agent, unless the attorney representing the debtor fails to answer written communication or fails to discuss the claim on its merits within 30 days after receipt of the written communication.

g. Communicating information relating to a debtor’s indebtedness to an employer or an employer’s agent unless the communication is specifically authorized in writing by the debtor subsequent to the forwarding of the claim for collection, the communication is in response to an inquiry initiated by the debtor’s employer or the employer’s agent, or the communication is for the purpose of acquiring location information about the debtor.

h. Using or employing, in connection with collection of a claim, a person acting as a peace or law enforcement officer or any other officer authorized to serve legal papers.

i. Using harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

j. Using profane or obscene language.

k. Communicating with a consumer regarding a debt by post card.

l. Communication with third parties without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

m. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except to advise the consumer that the debt collector’s further efforts are being terminated; to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt.

A debt collector should accept a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

It is prohibited to solicit any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution or depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

A regulated person must within five days after the initial communication with a consumer in connection with the collection of any debt provide written notice of,

(1) The amount of the debt;

(2) The name of the creditor to whom the debt is owed;

(3) A statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) A statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) A statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

Legal actions by debt collectors:

(a) Venue. Any debt collector who brings any legal action on a debt against any consumer shall-

(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity-
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.

CREDITOR’S REMEDIES

Obtaining a judgment is often the easy part. Collecting it may be another matter. State Court judgment creditors have various remedies. Those remedies may include:

a. Periodic garnishments
b. Non-periodic garnishments
c. Creditor’s examinations
d. Writs of execution
e. Other less frequent remedies

Periodic garnishments
Michigan law allows a garnishment to be in force for 91 days after it is issued. Thus, instead of securing weekly garnishments against wages or salary, one garnishment will be good for approximately three months.

Non-periodic garnishments
One time (non-periodic) garnishments are used against banks or others holding property of a judgment debtor.

Creditor’s examinations
A creditor has the right to secure a judgment debtor discovery subpoena directing the judgment debtor to appear in court with certain documents and testify under oath concerning the debtor’s assets. This is often used when the creditor doesn’t know the debtor’s place of employment, his banking sources, or other assets.

Writs of execution
If the debtor has assets worth executing upon, a judgment creditor may obtain a Writ of Execution that directs the Sheriff or court officer to seize the defendant’s assets. The Court normally requires a bond before issuing the Writ.

Other less frequent remedies
Other less frequent remedies include the filing of an involuntary bankruptcy, asking the Court to appoint a receiver over the debtor or the debtor’s business.

CHOOSING A COLLECTION ATTORNEY

Many judgments are obtained by default. If a defendant fails to answers the Summons and Complaint a default and default judgment may 21 days after the defendant is served. Thus a legal battle as to whether the debt is owed never takes place.

If statements of account were sent to the debtor on a regular basis and the debtor failed to object to the accuracy of those statements, an account stated is created with a presumption that in the absence of mistake or fraud the statements were accurate. Thus, the debtor has a heavy burden in prevailing in any alleged defense.

Having an established relationship with a collection attorney can assist you in deciding what files to proceed on and which to write off.

Collecting Money from a Small Claims Judgment

Collections

Sep 8, 2014

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(This was slightly revised from a publication drafted by the State Court Administrative Office. Although is drafted for collecting a small claims judgment, it generally applies to any money judgment).

If you sued someone for money and received a judgment against a Michigan resident, you have the right to collect the money.

How Much Can I Collect?

You can collect the amount stated in your small claims judgment (form DC 85) plus any interest (and recoverable costs) that accumulate during the time the other party pays off the judgment.

How Can I Collect My Money?

There are several ways you can collect your money.

1. If the other party (defendant) has the money and is present at the trial, s/he can pay you right then.

2. If s/he does not have the money at that time and you both agree at the trial, the judge can set up a payment schedule. If the defendant is not present at the trial, the court will send a copy of the small claims judgment to the defendant. The judgment will order the defendant to pay you in full within 21 days or tell you and the court where s/he works and the location of his/her bank accounts on form DC 87, Affidavit of Judgment Debtor.

3. If the defendant doesn’t pay the judgment as ordered, you will have to collect your money through a seizure of property or a garnishment.

What Is Seizure of Property?

Seizure of Property is a court procedure allowing a court officer to seize property belonging to the defendant which can be sold to pay for your judgment. If you want to file a request to seize property, you may use form MC 19, Request and Order to Seize Property.

What Is Garnishment?

Garnishment is a court procedure allowing you to collect your judgment directly from the defendant’s wages, bank account, or other source such as income tax refunds. If you want to file a garnishment, see the court clerk for the proper forms. Instructions are included with the forms.

How Do I Get An Order to Seize Property Or A Garnishment?

To get an order to seize property or for garnishment, you will first need to know where the defendant lives and works, what assets s/he has and where these assets are located, and any other information which identifies the defendant and his/her property.

• If you have the information described above, you can start the process for an order to seize property or for garnishment.

• If you don’t have the information described above, you will need to order the defendant to appear in court for questioning through a process called discovery. You can start this process by filing a discovery subpoena.

Filing a Discovery Subpoena

You must wait 21 days after your small claims judgment was signed before you can file a discovery subpoena. Form MC 11, Subpoena (Order to Appear) can be used.

Contact the court for an appearance date before putting the date and location on the form. Complete both the front of the Subpoena and the Affidavit for Judgment Debtor Examination on the back. The judge must sign the Subpoena before it’s effective.

Once the Subpoena is signed you must serve it on the defendant. The fee for filing the Subpoena with the court varies. The cost of serving it also varies.

You may include a copy of form DC 87, Affidavit of Judgment Debtor, with the Subpoena for the defendant to fill out.

Filing a Request to Seize Property You must wait 21 days after your small claims judgment was signed before you can get an order for seizure of property. Form MC 19, Request and Order to Seize Property, is used to start the process. Complete the Request portion of form MC 19 and file it with the court. The filing fee varies.

The court will issue the order by signing the form, and it will be executed by a sheriff or court officer.

When do I get my money from a seizure of property?

Any property that is seized will be sold and the money given to you. The sheriff or court officer is entitled to fees which will be deducted from the sale of the property and added to the amount of the Judgment balance.

Filing a Request for Garnishment

You must wait 21 days after your small claims judgment was signed before you can get a garnishment. Form MC 12, MC 13, or MC 52, Request and Writ of Garnishment, is used to start the garnishment process.

There are three types of garnishment: 1) periodic, 2) non-periodic, and 3) income tax intercept.

A periodic writ of garnishment (MC 12) is used to garnish the defendant’s wages, rent payments, land contract payments, or other debt which is paid to the defendant on a periodic basis. A periodic garnishment is valid for up to 91 days or until the judgment, interest, and costs are paid off, whichever occurs first.

A non-periodic writ of garnishment (MC 13) is used to garnish the defendant’s bank account or other property. Once money has been garnished under the nonperiodic writ, the writ is no longer valid.

If there is a remaining balance on the judgment, you must get another writ to collect more money.

An income tax writ of garnishment (MC52) is used to intercept the defendant’s income tax refund. Once the tax refund has been intercepted by the Department of Treasury, the writ is no longer valid. If there is a remaining balance on the judgment, you must get another writ to collect more money.

Fill in the names and addresses of both the defendant and the garnishee on the Request part of the form. The garnishee is the person or business who has control or possession of the defendant’s money. Once you complete the Request, you must file it with the district court that entered your small claims judgment. The filing fee is $15.00.

The court will issue the Writ (order) by signing the form. The Request and Writ must be served on the garnishee along with the Disclosure, form MC 14. There is a $6.00 disclosure fee with a garnishment for periodic payments and income tax refund. The cost of serving the Writ varies.

When do I get my money from the garnishment?

The garnishee has 14 days after the Writ is served to let you, the court, and the defendant know if any money is available for garnishment. This information will be provided on form MC 14, Garnishee Disclosure. If you are trying to garnish wages, you will only receive part of the wages based on a federal formula. If money is available, it will be withheld from the defendant right away. However, this money will be held for 28 days to allow the defendant time for objections. If there are no objections, the withheld money will be automatically sent to you after 28 days.

If the garnishment is for periodic payments, money will continue to be sent to you as payments become due to the defendant until the writ expires.

What Else Can I Do?

If your case against the defendant involved a traffic accident, you can ask the court for an abstract of judgment which suspends the defendant’s Michigan driver license until s/he pays the judgment. You must wait 30 days after the judgment date before you can get an abstract of judgment. You need to provide the defendant’s full name, date of birth, and Michigan driver license number. There is no filing fee. The court clerk should have the necessary forms. MCL 600.8409(2).

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