CAPIAS vs EXECUTION

Capias: Pros/Cons

PROS:

    • Ultimate cost of a Capias can be less than that of an Execution
  • Some Debtors/Defendants respond once a Capias has been issued
  • By Completing a Surrender you may be able to minimize the initial expense
  • The fee for a Capias is added to the Judgment Debtors amount owed
  • After repeated Capias actions completed against the Debtor/Defendant a Judge may hold on purge. This means the Debtor/Defendant could be held until a certain amount is submitted to court

CONS:

  • A Capias usually requires an upfront out of pocket expense from the Creditor/Plaintiff
  • Some Debtors/Defendants do not immediately respond to a Capias notice
  • If a Physical arrest is required the amount usually needs to be paid in full before a Constable or Sheriff will complete any actions. If the case requires a physical arrest the fee can range from $300.00 to $500.00 and a physical arrest may be required repeatedly if the Debtor/Defendant defaults. This means more visits to the court house
  • If you cannot enter an agreement for satisfaction with the Judgment Debtor/Defendant you could spend a good portion of the day in court
  • Many times full satisfaction is not completed and a payment arrangement is established. There is also the possibility of a review date being established, temporarily excusing the Debtor/Defendant from any monetary obligations

Execution: Pros/Cons

An Execution process should be carefully considered. It should be viewed as a last resort action in most cases unless the Debtor/Defendant has numerous assets and chooses to not comply in any fashion. The levy of items, such as automobiles, is frowned upon by some attorneys and Judges even though listed as a viable option in the “Information About Small Claims Judgment” form provided by the court. A Demand on Execution is typically completed prior to any levy. This allows the Debtor/Defendant opportunity to settle without losing his/her assets.

PROS:

  • Most cases do not require an upfront fee and proceeds are collected from the sale of property as allowed by law
  • The sale of an asset usually provides more monetary disbursement that could satisfy the Judgment in a single action
  • The loss of property on levy can promote the immediate resolve capability of many Debtors/Defendants

CONS:

  • Any property levied upon may have other actions placed upon it that have primary importance of satisfaction. Items such as liens, tax liability, state fee, etc need to be satisfied before any monies are allotted to the Judgment
  • Fees of the Constable or Sheriff are paid before any proceeds are disbursed to Creditor/Plaintiff
  • You need a Constable or Sheriff that is knowledgeable of the entire procedure for completing levies. Real Estate requires timely procedures in order to be recorded properly. Real Property (vehicles, boats, etc) needs to be properly evaluated to qualify (new exemption law went into effect April 7, 2011)