See our complete guide to collecting a judgment/debt for landlords
Collecting Upon Debts From Tenants
The first thing to know about debt collection is that your remedies stink. There is no Debtor's Prison anymore, and if the tenant can't pay, then you likely won't recover anything. Thus it stands to reason that the careful landlord avoids putting himself and his property in the way of a spendthrift tenant who consumes time, money and resources and against whom a landlord has little recourse. Thorough background checks and getting rental references are key.
But if you are in the unhappy position wherein a tenant owes you money, the first thing that you have to do is to reduce your claim to judgment. This means filing a claim for damages against the tenant and prevailing in the action. It only stands to reason that you cannot start collection proceedings against a tenant against whom you have only an allegation. You must have a judgment against the tenant in hand to get going on the seizure of the tenant's assets.
There are three tools for getting assets from the debtor unwilling to pay, but before you can make use of them, you must gather information about your target. To do this, you may set up a Judgment Debtor Examination through the court which issued your judgment. Via this process, you can require the debtor to appear and answer questions under oath about his assets (or, unfortunately, lack thereof).
If the debtor does not appear, or repeatedly fails to appear, it is possible to get the court to issue a Capias Letter. This will be entered into Ohio's LEADS system, used by law enforcement personnel to check the identities of the people with whom they come into contact. A Capias Letter acts very much like a warrant for the debtor's arrest.
Once the debtor appears for the Judgment Debtor Examination, you may ask him about his assets. You can ask about any real estate he may own (unlikely), where he works and how much he makes, where he banks and what his account numbers are, any question at all related to his assets or his ability to pay you back. Armed with this information, you can set about using the three collection practices listed below.
If you are fortunate enough to be owed money by a debtor who owns real estate, then you can certify your judgment with the court that issued it, and have it recorded at the county recorders or auditor's office. This will place a cloud upon the title to that property and no one will buy it or consider financing in relation to it while the lien stands unpaid (unless part of the financing deal sees that lien getting paid off). If the debt is large enough, it may justify the expense of a foreclosure action against the property.
If your debtor is employed, you can send the debtor a letter asking him to send in any amount of money from his bi-monthly paycheck which is in excess of the amount he would earn by working 60 hours at minimum wage. If the debtor refuses this request, then you can make a motion with the Court issuing your judgment that his wages above that first 60 hours at minimum wage be garnished. If the Court grants that order, upon your sending it to the employer and paying the employer the garnishee's fee, any extra money will be withheld from the debtor's paycheck, sent to the court and released to you.
It should be noted that there are certain other deductions which will stand before you in line for withholding. Any of the typical withholdings you see on your paycheck will be taken out before your garnishment. So taxes, medicare, unemployment insurance payments and the like will be pulled out before your withholding. Further, if the debtor has child or spousal support obligations being withheld, these will come out first as well.
If your debtor has a bank account somewhere in Ohio with funds in it, you can get at these funds by making a motion for the garnishment, and having the court approve it. Upon presenting the order of the court to the banking institution holding the account, they will release the funds if they are available. But if some of these funds are somehow earmarked for spousal or support payments by a domestic court, these funds will exempt from your collection efforts.
Just because a person is not collectible when you get the judgment against him does not mean that he will ever remain so. People go through phases in their lives wherein they have money and wherein they don't. Your judgment debtor may inherit money or property, may graduate from school and get a good paying job, or may get married to a wealthy person fool enough to put assets into your judgment debtor's name. Persistent landlords who do not give up on the collection process despite multiple setbacks are the most likely to get paid.
If all of this seems like quite a hassle to you, be aware, it is. Your best remedy is never to have put a deadbeat in a position to owe you anything. It's sort of like a defendant in a DUI standing before the judge awaiting sentence. How much would that fellow give to go back in time and just pay the $15.00 for the cab? How much would you, as a landlord who made a bad decision on a tenant, give to go back in time and just do a few background checks?
There are a myriad of rules which must be followed in attempting collections from a tenant who owes money but will not pay. If you are a rental manager working for a landlord, then you cannot go into court and represent the landlord at collection proceedings unless you are an attorney (otherwise this amounts to the unauthorized practice of law). If your rental property is held in the name of a corporation for limited liability purposes, then you cannot represent the corporation in collection practices unless you are an attorney.
If you do own the property yourself, you can represent yourself in these collection practices. You need to take care though that you follow all of the mandates of the Fair Debt Collection Practices Act. While the FDCPA does not apply to persons owed money (only those who attempt to collect for others), Ohio Courts have held that a violation of the FDCPA by the person who is owed the money is also a violation of Ohio's Consumer Sales Protection Act. Violations of the CSPA can subject you to treble damages and attorneys fees.
It is best then to hire an attorney to undertake collection proceedings against judgment debtors. Attorneys know the ins and outs of these things much better than the lay person, and can usually be more efficient with the time and resources spent by realizing earlier on whether the person is collectible or not. They also have all of the necessary forms lined up in their computers ready to go upon being filled in and printed out with the correct information. Their forms have all of the required warnings and notices required under law.
The purpose of this article is to educate you on how the collection process works (or more to the point, often does not work) and to emphasize the importance of the tenant selection process.
Having trouble finding what you are looking for, then search our site below:
Web site and all contents Copyright ohiolandlordtenant.com 1999-2010, All rights reserved.