Collecting Restitution in a Criminal Case
Often in a judgment of sentence on a criminal case the judge
will order the convicted defendant to pay restitution to the victim(s) of the
crime. The restitution awarded to the victim is an effort to make that person
whole. A restitution order remains effective until it is satisfied in full –
in other words, the order does not expire. The restitution ordered on the judgment of
sentence is the judgment – a separate civil judgment order is not necessary - so restitution enforcement takes place within the criminal file.
The restitution ordered on the judgment of sentence is a
judgment and a lien against all property of the defendant, and a lien may be
recorded as provided by law. Also, the restitution order may be enforced in
the same manner as a judgment in a civil action or lien by the prosecutor, victim
or his/her estate, or any other person or entity named in the order as a
recipient of restitution. MCL 780.766(13).
Some ways to enforce
payment of restitution are:
- garnishing a defendant’s wages, bank accounts, or state income taxes;
- conducting a debtor’s examination to discover assets; and
- filing a lien against
the defendant’s real property.
The court may not impose a fee on a victim, victim’s estate, or prosecutor for enforcing a restitution order. MCL 780.766(20).
Collecting a Judgment in a Civil Case
If you sued someone for money and received a judgment against that person, you are called the "judgment creditor" and the person against whom you received the judgment is called a "judgment debtor."
As a judgment creditor, you have the right to begin to collect the money before the judgment expires based on the statute of limitations in MCL 600.5809. The statute of limitations is tolled (stopped) during the time that the judgment is being paid in installments. See MCL 600.6107 and MCL 600.6235.
If a judgment expires, your legal options for collecting money are no longer available. In order to continue collecting on a judgment after the expiration date, the judgment must be renewed. A motion to renew a judgment must be filed before the original judgment expires. A renewal of a judgment extends the judgment for the same period of time as the original judgment. See MCL 600.2903 and MCL 600.5809.
How Much You Can Collect
You can collect the amount stated in your judgment plus any interest that accumulates during the time the judgment debtor pays off the judgment. See information on interest rates. For help in calculating interest rates, you may want to contact a certified public accountant or a bank.
How to Collect Your Money
There are several ways you can collect your money.
- If the judgment debtor has the money and is present at the trial, s/he can pay you right then. If that happens, file a satisfaction of judgment with the clerk. You can use form MC17, Certificate of Satisfied Judgment.
- If the judgment debtor does not have the money at that time and you both agree at the trial, the judge can set up a payment schedule. If the judgment debtor was not present at the trial, the court will send a copy of the judgment to the debtor in a small claims case. For all other cases, you will have to send the judgment to the judgment debtor. The judgment will order the judgment debtor to pay you in full within 21 days or tell you and the court where s/he works and the location of his/her bank accounts.
- If the judgment debtor doesn't pay the judgment as ordered, you will have to collect your money through a seizure of property or a garnishment. See below for details.
- If your case against the defendant involved a traffic accident, you can ask the court for an abstract of judgment, which suspends the judgment debtor's Michigan driver license until s/he pays the judgment. You must wait 30 days after the judgment date before you can get an abstract of judgment. You need to provide the judgment debtor's full name, date of birth, and Michigan driver license number. There is no filing fee. The court clerk should have the necessary forms.
Seizing property is a court procedure allowing a court officer to seize property belonging to the judgment debtor, which can be sold to pay for your judgment.
Garnishment is a court procedure allowing you to collect your judgment directly from the judgment debtor’s wages, bank account, income tax refunds, or other sources. In a garnishment proceeding the judgment debtor is the called the defendant and the judgment creditor is called the plaintiff. For garnishing income tax, contact the Michigan Department of Treasury at (517) 636-5333. They also have a website with frequently asked questions and answers regarding garnishment.
Getting an Order to Seize Property or an Order for Garnishment
To get an order to seize property or an order for garnishment, you will first need to know where the judgment debtor lives and works, what assets s/he has and where these assets are located, and any other information that identifies the judgment debtor and his/her property.
- If you have the information described above, you can start the process for an order to seize property or an order for garnishment.
- If you don't have the information described above, you will need to order the judgment debtor to appear in court for questioning through a process called discovery. You can start this process by filing a discovery subpoena.