If the court finds for the plaintiff after decision has been reserved, or if the defendant defaults at the hearing, an order to pay in full within thirty days should be entered and a prompt payment hearing scheduled.
Commentary
In cases where the decision is not announced at trial or in default situations, a payment order should routinely be entered for the full amount of the judgment and costs, payable in full in thirty days unless the court specifically orders a longer period. The making of such orders is essential to expeditious small claims processing. When the court informs the small claims assistant clerk-magistrate or small claims supervisor of his or her decision in a reserved case, the assistant clerk-magistrate or small claims supervisor should confirm with the clerk-magistrate or judge that a thirty day payment order should also enter. In an exceptional case where the court consciously declines to issue a payment order at the time of judgment because "justice will not be served thereby," (see Uniform Small Claims Rule 7 [g]) or the defendant has no present ability to pay, the court should direct the small claims assistant clerk-magistrate or small claims supervisor to note that ruling on the docket sheet as a guide in subsequent hearings on the matter.
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."
Pursuant to the new Uniform Small Claims Rule 7 (g), the court should automatically schedule a payment hearing at the time of the judgment and payment order. In most cases, the automatic payment hearing should obviate the need for a show cause hearing. Historically, a show cause hearing took weeks and months to schedule. This new rule was promulgated in order to obtain a quick determination as to whether the defendant has exempt income or is unable to pay and to eliminate the need for the plaintiff to obtain and pay for service of process and thus save the plaintiff additional frustration in those cases where the defendant's financial status precludes the judgment from being satisfied.
The payment hearing must be scheduled for the thirtieth day following judgment or shortly thereafter. The court must send to the parties a Notice of Payment Hearing as well as the Notice of Judgment. The defendant is afforded several options within the thirty day period. First, the defendant in a case that went to trial may claim an appeal within ten days of receipt of Notice of Judgment, in which case the payment hearing would be canceled. Second, the defendant can simply pay the successful party and satisfy the judgment. (A form should be provided for the plaintiff and the defendant to file with the court as evidence of payment.) Third, the defendant can appear at the payment hearing and the burden would then fall upon him or her to show why payment should not be made in full. For the defendant to avail himself of this option, however, he or she would have to fill out a Trial Court-approved financial disclosure form and provide a copy to the plaintiff in advance of the payment hearing. The court should be mindful of the statutory exemptions for certain types and amounts of income, 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 fails to appear at the payment hearing, this failure to appear shall constitute a default and subject the defendant to arrest. If the defendant appears but has failed to provide a financial statement, the court should direct the defendant to do so forthwith. If the defendant refuses to fill out a financial statement, then the matter should be referred to a judge on the issue of contempt. The court, in addition to reviewing the defendant’s financial statement, may require additional financial information including, but not limited to, income tax returns, payroll information, and investment information.
The court must inform the defendant that failure to comply with a payment order could result in his or her being held in contempt of court. In most cases, the court should schedule review dates to ensure compliance with any orders entered for payment or to review the ability to pay of a defendant who is currently judgment proof or unable to pay. These review dates allow the court to become more pro-active with respect to the satisfaction of judgments entered and orders made.
A successful small claims litigant should never be required to initiate formal supplementary process proceedings under G.L. c. 224 to obtain a payment order. Similarly, the Uniform Small Claims Rules no longer require that the losing party be summonsed (by the procedure formerly referred to as "small claims supplementary process") merely for the court to issue a payment order. If, inadvertently, a payment order was not made at the time of judgment, upon inquiry by the prevailing party, the small claims assistant clerk-magistrate or small claims supervisor should bring the omission to the attention of a clerk-magistrate or judge in order to have a payment order entered and a payment hearing scheduled.