If a decision for the plaintiff is announced at the end of trial, the defendant should be examined as to ability to pay, and a payment order should be made contemporaneously with the judgment.
Commentary
A plaintiff who has prevailed should not, if at all possible, have to make additional court appearances in order to obtain a payment order. Uniform Small Claims Rule 7(g) requires that a payment order be entered immediately upon decision "except where justice will not be served thereby." Therefore, unless there is a compelling reason—e.g. additional information is needed to properly evaluate a defendant’s ability to pay—the court should conduct a full payment hearing immediately after announcing its decision.
Prior to the commencement of any payment hearing, the defendant must be advised of his or her right to appeal the court's judgment on the small claim. See Standard 8:00. If the defendant indicates he or she will appeal, the court shall not conduct a payment hearing.
Payment orders should be issued for the amount of the judgment plus allowable costs and should require payment by a definite date or on a definite schedule, unless the court finds an inability to pay or that the defendant's income is exempt from judgment. See Uniform Small Claims Rule 7(g) and 7(h) and Standard 7:04. If the defendant requests time to pay and the schedule of periodic payment proposed by the defendant is unacceptable to the prevailing party, the court shall require the defendant to complete a written financial statement on a form prescribed by the Chief Justice for Administration and Management. The financial statement should provide information sufficient to determine the source of the defendant's income and ability to pay and to allow the court to order specific and suitable payment installments. In making an order to pay, the court should observe all relevant statutory exemptions, such as those in G.L. c. 235, s. 34. See G.L. c. 224, s. 16, made applicable to small claims by G.L. c. 218, s. 23. The court should recognize that unrepresented defendants may not be aware of such exemptions. If the defendant's income is exempt or the defendant is unable to pay, the court should continue the payment hearing date to a further date to see if the defendant's financial status has changed.
The provisions of a payment order should be entered on the Notice of Judgment form. In unusual circumstances, the court may order the defendant to make payments through the court rather than directly to the prevailing party. Uniform Small Claims Rule 7(g).
A payment order against a corporation is made by naming its president, treasurer, cashier, or other officer or agent in charge of the payment of corporate debts. A payment order against a trust with transferable shares is made against the trustee or agent in charge of payment of its debts. See G.L. c. 224, ss. 2, 15, made applicable to small claims by G.L. c. 218, s. 23. In such situations, the person should be named in her representative capacity, i.e. "Jane H. Jones, as President of ABC, Inc."
In the rare cases where the court is unable to conduct a payment hearing upon decision, that hearing may be continued for a period of time not to exceed thirty days or shortly thereafter.
The court must inform the defendant that failure to comply with a payment order could result in his or her or her being held in contempt.
See Standard 7:07 as to modification of payment orders.