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HOW TO COLLECT AND/OR REVIVE A JUDGMENT IN THE JUSTICE OF THE PEACE COURT

A judgment in the Justice of the Peace Court is good for five years. Thereafter, court procedures may be used to attempt to collect a judgment only if the judgment is revived by scire facias. To revive a judgment by scire facias, the plaintiff should file a motion for a hearing on reviving the judgment. This is done by filing a Civil Form No. 11 (Request for Motion Hearing) and paying the applicable fee. If you are using a Form 11 that you obtained online, you should make four copies of the Form. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 11 supplied by the Court, you do not need to make any additional copies, other than one for your own records.)

Both judgment creditors and debtors should be aware that once a judgment is collected, it is the responsibility of the judgment creditor to notify the Court in writing that it has been paid (satisfied). If the judgment creditor does not do so, the judgment debtor may, under 10 Del. C. § 9567, sue the creditor for an amount not to exceed half the judgment. An action to recover for failure to record the satisfaction should be filed as a debt action following the procedures described in the section on filing a complaint.

The procedures for collecting a judgment are complicated. You may want to talk to a lawyer to assist you with this process. The following are methods by which you may attempt to collect your judgment.

1) Agreement by both parties. The plaintiff may enter into an agreement with the other party regarding collecting the judgment. The Court will not be involved with this. The Court only determines the amount of money owed and to whom, but not how the debt is paid. However, if an agreement cannot be reached or if the party owing the money does not comply with the agreement, the plaintiff may seek the assistance of the Court through any of the following procedures.

2) Collecting from the Defendant's Wages. The plaintiff may request that the money that the defendant owes be deducted over time from the defendant's wages by his or her employer. This is called a wage garnishment. Remember that the Court will only do this upon the plaintiff's request. The Court will not automatically require the defendant's employer to withhold the defendant's wages.

To request that the defendant's wages be garnished, the plaintiff must complete a Civil Form No. 17 (Garnishment of wages/property). In completing the Form 17, the name and address of the defendant's employer must be included. It is important to note on the the Form 17 (where it says "less total credits") the amount of any previous payment received from the defendant. The plaintiff should also fill in the county, court number, court address, civil action number and plaintiff and defendant information on the top of the Form 17A (Answer to Request for Garnishment of Wages). If you are using a Form 17 and 17A that you obtained online, you should make four copies of each Form. You should retain one copy for your records and take or mail, the original plus three copies each along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 17 or 17A supplied by the Court, you do not need to make any additional copies, other than one for your own records.) After the request for garnishment is filed with the Court, it will be sent to the defendant's employer and the employer will be required to file an answer with the Court within 20 days. In the answer, the employer must indicate whether it currently employs the defendant, whether there are any reasons why the defendant's wages may not be garnished, and if not, the defendant's rate of pay.

If the defendant is employed by a corporation which is not incorporated in Delaware, special procedures for garnishing/serving foreign corporations will have to be used.

The amount of wages which may be garnished is limited by both Delaware and Federal law and, in some cases none of a defendant's wages may be garnished because his or her disposable income is below the limit set by law (Civil Form 34). In addition, under Delaware law, there may be only one garnishment of an individual's wages. Thus, if the defendant's wages are already being garnished by another creditor, the plaintiff will not be able to garnish the defendant's wages.

3) Collecting from the Defendant's property. A plaintiff attempting to collect a judgment from the defendant's property must

a) file a request that the constable levy (earmark the property for later constable's sale) on the defendant's property. This is done by completing a Civil Form No. 16 (Levy). The plaintiff should also fill in the county, court number and address, civil action number and name of the judgment creditor on the Form 21 (Inventory and Appraisement). If you are using forms you obtained online, you should make four copies of each form. You should retain one copy for your records and take, or mail, the original plus three copies, along with the filing fee, to the Court. (If you are using a carbonized copy of the forms supplied by the Court, you do not need to make any additional copies, other than one for your own records.). The plaintiff may not designate specific property on which he or she wants the constable to levy. However, a plaintiff wishing the constable to be able to levy upon the defendant's motor vehicle (including a mobile home), must submit a certificate of lien from the Division of Motor Vehicles along with the Form 16.

To learn how to obtain a certificate of lien, contact the Division of Motor Vehicles at:

Department of Public Safety
Division of Motor Vehicles
P.O. Box 698, Dover DE
Attn: Correspondence Department

Phone: (302) 744-2509

Certain items are exempt from levy and sale. These are: the family Bible, school books and family library, family pictures, all the wearing apparel of defendant and defendant's family, tools, implements and fixtures used in the defendant's trade or business up to $75.00, sewing machines used by seamstresses or private families. In addition, the defendant may have the right to a head of family exemption of $500.00 worth of personal property beyond those items listed above. For more information see 10 Del. C. § § 4901-4913

The constable will appraise all items on which a levy is made in an attempt to ensure that a sale will produce sufficient money to pay the judgment and that the levy is not excessive. A defendant who believes that the levy was legally excessive may file a motion with the court using Civil Form No. 11.

The plaintiff will be notified as to whether a levy has been made or whether the constable has been unable to make the levy either because the defendant has no property upon which to levy or because the defendant could not be located. If the constable has not been able to find any goods upon which to levy, a "nulla bona" return will be made. A plaintiff wishing to have the constable attempt a levy at a later time will need to file and "alias" execution form and pay an additional filing fee.

If the defendant refuses entry to the constable to make the levy, the plaintiff will be notified by the Court and asked whether he or she wishes to have a show cause hearing at which the defendant will be required to show cause why he or she should not be charged with contempt of court for failing to permit the entry for levy.

In certain situations, property of the defendant may be in the hands of another person. A garnishment of the defendant's property in the hands of the other person may be made by filing a Civil Form No. 17 (Garnishment). The plaintiff should also fill in the county, court number, court address, civil action number and plaintiff and defendant information on the top of the Form 17B (Answer to Request for Garnishment (Other than Wages)). If you are using Forms 17 and 17B that you obtained online, you should make four copies of each Form. You should retain one copy for your records and take or mail, the original plus three copies each along with the filing fee, to the Court. (If you are using a carbonized copy of the Form 17 and 17B supplied by the Court, you do not need to make any additional copies, other than one for your own records.)

b) Request that a constable's sale of the defendant's property be held. If a levy has been made on the defendant's property, the plaintiff may request that a constable's sale be held. The plaintiff must notify the Court in writing that he or she requests the sale to be held (there is no special form for this) and pay the applicable fee. This request must include a statement of what the defendant continues to owe. The plaintiff will be notified by the Court of the date, time, and place that the sale is scheduled to be held. After the sale, the constable will take the proceeds to the Court and the Court will distribute them.

4) File a Lien on Real Property. A lien on real property (real estate) owned by the defendant may be created by filing a certified transcript of the docket entries of the judgment with the Prothonotary of the Superior Court in any county in which property of the defendant may be located. A judgment so transferred becomes a lien from the date transferred on all the real estate of the defendant which is located within the county in which the Prothonotary's office was located. The certified copy of the transcript of the docket entries should be requested from the Justice of the Peace Court in which the judgment was obtained. The request should be accompanied by the applicable fee.