Collecting judgments in Massachusetts: Supplementary Process
January 21, 2010
Congratulations, you have won your case and now have a money judgment. Now what can be done to get paid? There are different options available to collect your judgment depending on the specific facts and circumstances of your matter.
One option is for you, the judgment creditor (“creditor”), to file a Supplementary Process action against the defendant, now the judgment debtor (“debtor”). Small claim actions have a “built in” process very similar to Supplementary Process. The judgment debtor in a Supplementary Process action can be a natural person, a corporation, a trust, a society, a partnership, an incorporated or an unincorporated association, or any other legal entity.
Supplementary Process in Massachusetts is a governed by statute, specifically chapter 224 of the General Laws. Unless the judgment is from the Housing Court, the venue for Supplementary Process is the District Court or the Boston Municipal Court, regardless of the judgment amount. The Housing Court hears Supplementary Process actions to regarding judgments it enters. The action is filed in the court within whose judicial district the judgment debtor resides, or has a usual place of business. If the judgment debtor does not reside, or have a usual place of business in Massachusetts, the action can be filed within the judicial district where the judgment entered.
Supplementary Process is commenced by filing an application with the court, along with the original execution or a certified copy of the judgment. The court will issue a summons to the creditor for service that orders the debtor to appear in court at a specific time to be examined as to its property and ability to pay. The creditor is responsible for having the debtor served in the required manner by an officer qualified to serve civil process.
At the court hearing the creditor, or its attorney, will usually first speak to the debtor informally about its assets, employment, and overall ability to pay the judgment either in full, or over time. After that discussion the parties may agree that the action be continued or a payment order be entered by the court. Both parties have the right to have the matter go before a judge and must do so if an agreement cannot be reached.
When the creditor and debtor cannot agree to a payment plan, or that the action be continued or dismissed, the creditor will examine the debtor before the court about its assets (i.e. real and personal property, employment, etc.). The creditor may call witnesses, who may appear voluntarily, or by subpoena to testify. The creditor has the burden of providing sufficient evidence to the court for find that the debtor has non-exempt assets, or the ability to pay, the court may order the debtor to produce the property or make payments to the creditor. A debtor can be held in contempt if it fails to comply with the court’s order.
A debtor cannot be ordered to produce exempt property, or make payments from protected sources of income. The courts payment order form lists the common exemptions on the back page.
Although not utilized as often, Supplementary Process also allows a creditor to:
- Arrest the Debtor on Execution (M.G.L. c.224 § 6)
- Charge that the judgment debtor has, per M.G.L. c. § 19
- “[s]ince the debt was contracted or the cause of action accrued, the defendant or debtor has fraudulently conveyed, concealed or otherwise disposed of the whole or a part of his or its property, with intent to secure it to his or its own use or to defraud his or its creditor;”
- “[s]ince the debt was contracted or the cause of action accrued, the defendant or debtor has hazarded his or its money or other property to the value of one hundred dollars or more in some kind of gaming prohibited by the laws of this commonwealth; or”
- “if the action was founded on contract, the defendant or debtor contracted the debt with intent not to pay it.”
If the debtor fails to appear at the original or continued hearing the court will issue a capias. A capias is a civil arrest warrant. The creditor, subject to certain limitations, can then have a sheriff or constable arrest the debtor and bring him or her to the court. The sheriff or constable will often try to arrange for the debtor to appear at the court on a specified date and time to surrender. If the debtor does not voluntarily come to court the sheriff or constable, if instructed, will physically apprehend the debtor and take them to court.
If you have a judgment against a person or a company, or an attorney that has obtained judgment for a client, that is not being paid feel free to contact me to discuss how I can be of service to you.