A writ of assistance is a powerful tool for collecting money
On the Money
From the September 7, 2007 print edition
Cornelius Vanderbilt, when speaking to a competitor who owed him money, said, “You have undertaken to cheat me. I won’t sue you, for the law is too slow. I will ruin you.”
Many would agree with the 19th-century shipping and railroad tycoon. The legal process takes time — and in the case of civil actions to collect money, two kinds of time.
First, there is the time between initiating a lawsuit and obtaining a judgment. A judgment is simply the court saying that yes, the debtor owes you the money — hence the terms “judgment creditor” and “judgment debtor.” It’s not uncommon for several years to elapse before a creditor obtains this court-ordained document that theoretically forces the debtor to pay up.
However, courts aren’t collection agencies. It’s the responsibility of the judgment creditor to collect on the judgment.
A second clock starts ticking the moment judgment is entered — the post-judgment collection period. That’s the parade of post-judgment attempts by the judgment creditor to get their money. This also can take years. Meanwhile, the debtor continues to hoard (maybe even hide) money that’s rightfully yours.
Fortunately for creditors (and unfortunately for scofflaw debtors), there is a powerful but little-known legal instrument available: the “writ of assistance.”
Writs of assistance began being widely used in the 1700s in support of customs and excise inspections, particularly in New England. Today, a writ of assistance is issued by the clerk of a U.S. District or Bankruptcy Court, at the discretion of a judge, after judgment is rendered. The judgment creditor typically files an ex-parte motion to obtain a writ of assistance. “Ex-parte” means without the other party’s knowledge or participation.
The writ is served and executed (obviously unannounced) by a law enforcement officer, usually a U.S. marshal or county sheriff.
A writ of assistance is so powerful that it’s often served simultaneously with a team of sheriffs, locksmiths, moving personnel, trucks, packing boxes, videographers, private security guards and computer technicians. There’s no notice required before serving the writ and no delay in its execution.
The sheriff appears unannounced and informs the debtor that he’s there to “assist” the debtor in paying his debt by taking his stuff. The squad then removes the debtor’s possessions.
To provide a full flavor of the power and scope of a writ of assistance, consider the following, taken from an actual case in Colorado.
“To the Sheriffs of any and all counties: You are hereby ordered and directed to assist in this case by seizing and taking into custody and control any and all papers, documents, negotiable instruments, business records, computer records, computers, bank records, originals or copies of deeds, division orders, leases on oil and gas properties, stock certificates, stock purchase and sale orders, cash, checks, stocks, bonds, personal property, […] Specifically including, but not limited to, those items contained within the trunk of any automobile […] or within any briefcase or office in the possession or control of any of the Judgment Debtors.
“You are further directed, in the event any of the foregoing are found by you at any home or office, to search that home or office for any of the foregoing materials and to seize same and to take them into your custody and control.”
In the words of Ron Popeil, “But wait, there’s more!”
“You (the Sheriff), are specifically authorized and directed to break into and enter any automobile, home, or office […] or any briefcase in the possession or control of any of the Judgment Debtors, or any locked desk file cabinet, safe or other depository or office found under the direction and control of any of the Judgment Debtor.”
And even more, “You are directed, ordered and authorized to use sufficient and necessary force to accomplish the purposes of this writ in its entirety.”
A writ of assistance also immediately stops the debtor from spending, selling, transferring or giving away any cash, gold or silver coins or bullion, any philatelic collection or any other assets to any other person without order of the court or prior permission of the judgment creditor.
In other words, the judgment creditor is paid first.
Therefore, if you’re a creditor, have obtained a judgment from the court and agree with Vanderbilt’s statement about the law being “too slow,” a writ of assistance may be just what you’re looking for.
© C. Stephen Guyer for American City Business Journals Inc. All rights reserved.