After the Trial
At the end of the trial, or up to 10 days after the trial, the Magistrate will sign a written decision called a judgment. The Magistrate gives this to the Plaintiff, the Defendant and the clerk’s office. The clerk files the judgment in the official court records, which are available to the public. These records include the losing person’s name, the amount and nature of the judgment, and whether the judgment has been paid. Creditors use these records for credit checks.
The Plaintiff – Getting What is Owed You
If you are the Plaintiff and have won your case, the Defendant may pay you directly or give the money owed you to the clerk of court. The Defendant must do this within 10 calendar days after the judgment or Appeal the magistrate’s decision to District Court. If the Plaintiff accepts payment from the Defendant the Plaintiff must notify the clerk’s office so the payment can be recorded in the official records. Do this within 60 calendar days or the defendant can sue you to make you do this. In such a suit, you pay the Defendant’s attorney fees and court costs. If the Defendant has not paid or appealed in the 10 day period, you can have the clerk issue an order to the sheriff called an execution. This gives the sheriff the power to demand payment of your judgment from the defendant. If the defendant does not pay, the sheriff can then seize any cash, vehicles, goods or other property of the defendant, sell them, and use the money to pay the judgment. The sheriff turns over any money collected in this way to the clerk, who notes payment in the official records and gives the money to you.
Property Which the Sheriff Cannot Take – “Exempt” Property
The law lets the defendant keep some property, which is called “exempt” property. Therefore, before the clerk can issue the execution order, you must get additional forms from the clerk;
- “Notice of Right to Have Exemptions Designated” (AOC-CV-405)
- “Motion to Claim Exempt Property” (Constitutional Exemptions – AOC-CV-411)
- “Motion to Claim Exempt Property” (Statutory Exemptions – AOC-CV-415)
You must fill out portions of these forms, have the clerk sign the Notice and then have the forms served on the losing party. You can do this using the sheriff or the mail, as you did with the summons and complaint.
After receiving the forms, the defendant has 20 calendar days to fill out the Motion to Claim Exempt Property, mail or deliver it to the clerk’s office, and send you a copy. If the defendant does not return the form in the 20 day period or returns the form showing there is property to take, you can then ask the clerk to issue the execution to the sheriff. If the defendant returns the form but lists property as exempt that you believe should not have been listed, then you can ask for a hearing before a District Court Judge. At that hearing, you and or the judge can ask the defendant questions about the property listed on the Motion to Claim Exempt Property or any other property which you believe that the defendant may own but did not list on the Motion.
If the defendant denies owning certain property, then you will need to prove that the defendant is wrong. The Judge will then make a decision about what property the defendant can keep. After the decision is made, then you can ask the clerk of court to issue the execution to the sheriff.
The clerk’s fee for issuing this execution order is $25. The fee to the sheriff’s office for trying to collect the judgment is $30. Sometimes, the defendant may give the sheriff the money that is owed on the judgment. If the defendant does not pay, then the sheriff will need to locate property that can be taken to pay the judgment, then there will be additional costs involved in taking the property and selling it. You will be required to post a bond before the sheriff will take the property and sell it to pay the judgment. You will be reimbursed for those costs from the money collected from the sale of the property.
Do not attempt to take the execution to the other party yourself. Only the sheriff can deliver an execution and collect the money. After an execution is in force, do not accept any money or property from the other party.
The execution papers are good for 90 calendar days. If the sheriff cannot locate the defendant to deliver the execution or cannot locate property that can be taken to pay the judgment within that 90 day period, then he will lose his authority to try and collect the judgment for you. After the 90 calendar days, the sheriff will return the papers back to the clerk of court with a written statement about why the papers are being returned. If you still want to try and collect the judgment, then you will need to pay additional fees and ask the clerk to issue another execution. There is no limit on the number of executions that the clerk can issue. However, you are required to give the defendant a new “Notice of Right to Have Exemptions Designated” and “Motion to Claim Exempt Property” before any executions are issued.
If the Magistrate Rules Against You
If the Magistrate orders you to pay money to the other side, and you decide not to appeal, you can either pay through the clerk of court directly to the other side. Be sure to get a receipt when you pay, and be sure the clerk marks the judgment as “PAID”. If you pay the other side, get that party to go to the clerk’s office to have the official records marked “paid”. The plaintiff must do this within 60 calendar days or you can sue to have it done, with the other side paying your attorney fee(s) and court costs. To avoid such a problem, it is much safer to pay through the clerk of court.
If the magistrate orders you to return property to the other side, and you decide not to appeal, return the property directly to the plaintiff. Be sure to get a receipt from the plaintiff or plaintiff’s lawyer when you turn over the property.
Until the judgment is paid in full, the records in the clerk’s office will show that the judgment is “outstanding”. This could hurt your credit rating.
If You Lose and Can’t Afford to Pay
If you get a judgment against you and do not pay it, the other side may ask the sheriff to enforce the judgment. Your car or other property could be sold by the sheriff to enforce the judgment. However, before any property is taken by the sheriff, you can claim some of your property to be “exempt property” – that is property that is protected from being collected. You may be able to keep car, house, household property, or other property. Before your property is taken for a debt, you must receive a “Notice of Right to Have Exemptions Designated” and a “Motion to Claim Exempt Property”. You must fill out the “Motion to Claim Exempt Property”, return it to the clerk of court, and send a copy to the plaintiff or plaintiff’s attorney within 20 calendar days OR YOU COULD LOSE EVERYTHING YOU OWN!
If you do not fill out the form or do not claim property as exempt, the plaintiff can then ask the sheriff to start the execution. The sheriff can then come to your home or place of work to collect the money or seize property to sell in order to pay the judgment.
The sheriff can check at your house from time to time to see if you have gotten any property that is not exempt or given away any that you claimed.
The sheriff will not put you in jail because you cannot pay the judgment. The judgment stays on your record for at least 10 years or until you pay it.
What Property Can Be Protected
The exemption law lists different types of property, and sets limits for the amount of property that can be exempt. Exemption limits are based on the “equity value” of your interest in each item of property. To determine your equity value in an item, follow these steps:
- Determine the fair market value of your interest in the item. “Fair market value” means what you could sell the item for (at the flea market, for example). If you co-own the item with someone else, only the fair market value of your share of the property is counted.
- Determine the amount owed (pay-off) to each creditor who has a security interest in the item.
- Subtract #2 from #1
Following is a list of the types of property that can be exempted, with the “equity value” exemption limits for each type of property. The amounts listed below are effective January 1, 2006 and apply to judgments filed on or after that date. Exemption amounts may be different for judgments filed before January 1, 2006.
Each debtor Can Exempt:
- up to $35,000 in land, house, mobile home or other property used as a residence, or burial plots. (Additional protection may apply to real property of mobile home owned by married persons and unmarried person who are 65 year of age or older).
- Up to $5,000 in any property (this amount is reduced by the amount of exemptions claimed for residence or burial plot).
- up to $3,500 in one automobile
- Up to $5,000 in clothes, household furnishings and goods, appliances, books, animals, crops, and musical instruments which are used primarily for personal family or household use. This amount increase $1,000 for each defendant of the debtor up to a maximum of four (4) defendants
- up to $2,000 in books, tools, or other implements used in the trade of a debtor or dependent of the debtor
- life insurance policies listing a spouse and/or children as beneficiaries
- items of health care aid necessary for you or your dependents to work or sustain health
- compensation for personal injury or for the death of a person upon whom you depend for support (unless the judgment is for services related to the compensated injury)
- individual retirement accounts, including individual retirement annuities and Roth retirement accounts
- funds up to $25,000 in college savings plan under certain conditions
- other state or governmental retirement accounts
- alimony, support, separate maintenance, and child support payments necessary for your support
What Property is Not Protected?
Exemptions do not apply to the following:
- all of your property, if you fail to claim your exemptions on time
- the value of property in excess of the exemption amounts allowed
- personal property purchased less than 90 days before the judgment collection proceedings begin
- claims of the Federal government or its agencies, to the extent that federal law so provides
- claims of the State or its subdivisions for taxes, appearance bonds, or fiduciary bonds
- claims for liens placed by law against specific property
- if a creditor takes a security interest in connection with the purchase of an item, the item is not exempt from a judgment for the property by that creditor
- order for child support, alimony, or property distribution related to divorce or alimony
- property owned by debtors who do not reside in North Carolina
- judgments against corporations
Tips for Protecting Your Exemption Rights
- Notify the Clerk of Court and judgment creditor(s) if you change addresses after a judgment is entered. If you cannot be located for personal service by the Sheriff or by certified mail, service of the exemption notice can be made by regular mail to your “last known” address, whether or not you actually receive it.
- Carefully read all mail and Court notices you receive. Your 20-day time limit for claiming exemptions begins on the day after you are served with the exemption notice.
- Read and follow the instructions stated on the Motion form. Complete each section of the Motion. Make sure you list all of your property, including your share of property owned with others. You can attach additional pages if necessary. Values should be based on what you reasonably believe you could sell the item for, at a flea market, for example. If an item has no equity value (see above), you should list the item with “$0” value.
- Make sure to follow instructions at the end of the Motion for signing, dating, and serving your Motion, One copy of the Motion must be filed with the Court, and a copy must also be sent to the creditor – all within the 20 day time limit.
- If you need help completing the exemption motion, if you own property in excess of exemption limits, or if the creditor objects to your exemptions, promptly contact an attorney or local Legal Aid office for assistance.