How Do I File for a Writ of Execution?

When a plaintiff, the person to whom money is owed, obtains a judgment against a defendant, he or she must then collect on the judgment. One legal mechanism often available to a plaintiff is a writ of execution. In order to obtain a writ of execution, the plaintiff must summon the defendant back to court and convince the court that the defendant has assets that are available to be sold to satisfy the judgment.

When a person is owed money, he or she often files a lawsuit against the debtor in an attempt to obtain a monetary judgment. A judgment is a court order stating that the money is, in fact, owed. Once the plaintiff has a judgment against the debtor, the next step is to enforce, or collect, on the judgment. Before a plaintiff may make any efforts to collect on the judgment, the time frame within which the defendant has to appeal the judgment must elapse. Within the United States, a defendant generally has around 30 days to appeal a judgment, although time frames may vary by jurisdiction.

After the appeals period has run, the plaintiff must file a motion with the court to require the defendant to come back to court and answer to his or her income and assets. Courts may refer to this as a proceeding supplemental, a debtor's interview, or something similar. The purpose is for the plaintiff, and the court, to have an opportunity to ask the defendant, under oath, about his or her income and any assets or property that he or she has to determine whether or not a writ of execution is appropriate.

In the United States, both federal and state laws protect certain income and property from collection efforts on most judgments. Federal benefits, such as Social Security income, for example, are generally exempt from garnishment. Many state laws protect a person's real or personal property from execution to satisfy a judgment by making it exempt as well. If, however, the court is satisfied that the defendant has personal or real property that is not exempt from execution, then it may order a writ of execution.

A writ of execution is a legal order from a court that orders the local sheriff or constable to seize the property listed on the writ. Once the property is seized, it may be sold at a sheriff's sale and the proceeds used to satisfy the judgment held by the plaintiff. If there are any excess funds from the sale, they will be sent to the plaintiff. If a deficiency remains, then the defendant will still be responsible for the remaining balance on the judgment.