February 9, 2004
ENFORCING SMALL CLAIMS JUDGMENTS
By: Christopher Reinhart, Associate Attorney
You asked about enforcing small claims judgments in Connecticut and Massachusetts.
Under Connecticut rules, the court can order a defendant to pay a judgment by a certain date or by installments. The court can stay execution and other process while the order is complied with but can modify and vacate the stay for good cause (Practice Book § 24-30). A plaintiff can file for an execution to collect an unsatisfied judgment (Practice Book § 24-32). The plaintiff can request a wage, property, or bank execution or a wage or property attachment (unless the property is exempt from execution).
The plaintiff can also request that the court issue postjudgment interrogatories, to find out what property the debtor has. If an execution does not satisfy the debt or the debtor does not respond to the interrogatories within 30 days, the plaintiff can request that the court issue a petition to examine the debtor and subpoena documents.
In Massachusetts, court rules require the court to schedule enforcement proceedings and have the plaintiff serve the defendant with a notice to show cause when the plaintiff informs the court that the defendant has been ordered to pay and has not done so or after an order after a payment hearing (Trial Court Rule III, Uniform Small Claims Rules, Rule 9). If the court found the person able to pay earlier, the defendant has the burden of showing that he is now unable to comply with the payment order.
The court can take whatever action is appropriate so that payment orders are complied with promptly. A judge can hold someone in civil contempt or order incarceration. If a magistrate conducts the proceedings, he must refer the matter to a judge for a contempt determination (a judge can act immediately if available).
Under court standards, which are used in conjunction with the Rules, the court should take an active role in enforcing judgments and additional proceedings should not be required to satisfy the judgment. To take an active role, the standards recommend that the court: (1) require strict compliance with the automatic payment hearing procedures sent with the notice of payment hearing, (2) schedule compliance hearings so the burden is not on the plaintiff to get the case back before the court, (3) require strict compliance with the financial disclosure form and require additional information when needed, and (4) hold the defendant in contempt (Small Claims Standards, 9:00 to 9:05).
It appears that Massachusetts courts are encouraged to take a more pro-active role in enforcing judgments than Connecticut courts. The Massachusetts standards emphasize the court's role in scheduling and holding hearings to ensure compliance with orders while Connecticut's rules appear to require the plaintiff to take action to bring the case back before the court. Massachusetts also emphasizes using the court's contempt powers to enforce the court's orders after awarding a judgment. According to Stephen Ment of the Judicial Branch, Connecticut small claims cases are almost always heard by magistrates who do not have contempt powers.
In Massachusetts, court standards advise courts that they should schedule review hearings to monitor compliance orders in most cases. Under the standards, the court should issue a capias (an order to take a person into custody and bring him before the court) or order to show cause when the defendant does not appear at a compliance hearing. If the court holds a hearing with both parties and finds that the defendant is not complying, the standards allow the court to (1) require a new financial statement from the defendant; (2) revise the payment order and set a new review date; or (3) refer the case, either immediately or at a later date as justice requires, to a judge for a contempt hearing.
A defendant who claims to be unable to pay must fill out a financial statement, signed under penalty of perjury, unless the court provides otherwise. The form is not public but is available to the court, the parties, and attorneys in the case.
The standards advise the court to take immediate steps to bring a defendant before the court if he does not appear at a payment or compliance review hearing or if the plaintiff informs the court that the defendant did not comply with a payment order. Under the standards, the court's principal enforcement tool is contempt and the court should inform the defendant that his failure to make a payment could result in contempt and a fine or imprisonment. But contempt proceedings should not begin during the appeal period.
The court can issue a capias when a defendant does not appear at a scheduled payment hearing and it is satisfied that the person received notice of the hearing in the mail. The court can schedule a show cause hearing instead when it is uncertain whether the defendant is in contempt and arrest is inappropriate or the court believes there may be problems with the notice to defendant.
If the court receives evidence only from the plaintiff about the defendant's non-compliance, the court should schedule a (1) compliance hearing with written notice to the defendant or (2) show cause hearing, if the plaintiff requests it and the defendant's non-compliance appears willful.
The court must hold a contempt hearing when the defendant is in court on a capias or order to show cause. It must take appropriate action to ensure compliance with the order and satisfaction of the judgment. The court can set bail if it cannot or, in the interest of justice, should not hear the case on the day the person is brought in.
Magistrates can order remedies other than imprisonment or a fine and only a judge can find contempt and fine and imprison someone. A judge can incarcerate someone under civil contempt until the person complies with the court's order or other terms. This requires due process, advising the defendant of the charge, allowing a reasonable opportunity to reply to the charge including testimony and witnesses, and the right to counsel. The judge also has a statutory option under a quasi-criminal provision for up to 30 days in jail or a fine of up to $200, but this requires more extensive due process.
A plaintiff can request that the court attach the defendant's property. A plaintiff can also request an execution and the court must issue one without inquiring the reason for it. An execution is issued 15 court days after the judgment unless the case is appealed for a jury trial. A plaintiff with an execution can also enforce a payment order, but cannot recover twice the amount.