In order for the small claims procedure to be effective, the parties must have some assurance that the judgment will be satisfied unless the defendant is judgment proof or unable to pay. To that end, the court should take an active role in the enforcement of judgments. Institution of supplementary proceedings should not be required to satisfy a small claims judgment.
Commentary
Probably the most frequent complaint of small claims plaintiffs who have had judgments rendered in their favor is the difficulty they encounter in enforcing that judgment. After devoting substantial time, effort, and out-of-pocket expense to the prosecution of their cases, successful plaintiffs too often find themselves unable to collect payment. Historically, the courts have required these plaintiffs to activate each step in the enforcement proceedings. In many respects, this requirement has proven to be too complex for the average plaintiff. Given the relatively small amount of money that is usually involved in small claims, many plaintiffs become discouraged and decide that it is not worth the further time and effort needed to continue to pursue payment from the defendant.
The court therefore should assume a more active role in the enforcement process. The recent amendments to the Uniform Small Claims Rules intend that more active role and eliminate the necessity of formal show cause or supplementary process hearings in most cases. Although there will inevitably be some judgments that will ultimately prove to be uncollectible (e.g. because the person's source of income is not subject to execution), there are specific things that the court may do to speed up the enforcement process and make it more effective. These include:
- requiring strict compliance with the automatic payment hearing procedure sent with the Notice of Payment Hearing;
- scheduling a compliance hearing or hearings after entering a payment order so that the burden is not on the plaintiff to get the case back on the list;
- requiring strict compliance in completing the financial disclosure form and requiring additional financial information when warranted, including, but not limited to, income tax returns, payroll stubs, production of bank books, contributions to retirement funds, and payments to creditors; and
- holding the defendant in contempt after a hearing before a judge.
If the defendant moves to the jurisdiction of another court at any time during the process of enforcing a payment order, the small claim may be transferred at the request of the plaintiff to the court in the judicial district to which the defendant has moved for further enforcement actions. This matter should not automatically be transferred but may be transferred if requested by the plaintiff. Uniform Small Claims Rule 9 (b).