Can You Get Attorneys Fees For Collecting on Your Judgment?

When you file a lawsuit, you often give thought to whether or not you’ll win. But a smart attorney knows to also give thought to whether you will actually ever collect on any money that you may win. After all, a judgment without pockets to pay that judgment, is just a sheet of paper.

A savvy businessman and business attorney looks to whether a Defendant who loses a case and owes money on a judgment is collectable. While you can’t do full discovery on a Defendant’s ability to pay a judgment before a judgment is actually entered, there are ways of ascertaining whether or not a Defendant has the assets to pay a judgment.

What About Post Judgment?

But there is one more step, that many attorneys overlook: even if you win, and even if you can collect on the judgment—can you get your attorneys fees, for the time, effort and expense that it may take, to identify a Defendant’s assets, do discovery to locate a Defendant’s assets, and enter the necessary court orders, to seize or levy on on any assets the Defendant has?

Contractual Provisions

Just because your contract says that a prevailing party to a lawsuit gets attorneys fees, doesn’t automatically mean that you get attorneys fees for collecting on a judgment. You can, and should, include in your contracts provisions that allow a party to get attorneys fees for any time or actions necessary, to collect, post-judgment.

What if There Are No Contractual Post Judgment Fees?

If your contract doesn’t provide for them, you’ll have to rely on what Florida law says about getting attorneys fees for post judgment collection.

There is a law that says that courts “may award against a judgment debtor reasonable costs and attorney’s fees incurred [by a judgment creditor]…in connection with execution on a judgment.”

But note the word “may,” which means that a court can, but is not obligated, to give you attorneys fees for collecting on your judgment (assuming again that you don’t have a contract that allows for post judgment collection attorneys fees).

In deciding whether you get attorneys fees, courts can consider whether the debtor has evaded paying the judgment or hid assets or taken other actions, to actively avoid paying the judgment.

In layman’s terms: if it’s relatively easy to collect post-judgment, you won’t get your attorneys fees. So, things like bank account garnishments from a bank or wage garnishment from an employer, likely wouldn’t lead to you getting your attorneys fees.

But complex litigation to uncover fraudulent transfers and hidden assets, or challenging collection exemptions the debtor may assert, may lead to an award of an attorneys fee.

Ultimately in the absence of a contractual provision, you are at the mercy of a court, and will have to collect on your judgment by paying your attorney out of your own pocket, at least at first, and then afterward, you would present your request for fees, and hope the judge agrees with you.

Do your contracts say what you need them to say? Call the West Palm Beach commercial litigation attorneys at Pike & Lustig today.

Sources:

casetext.com/statute/florida-statutes/title-vi-civil-practice-and-procedure/chapter-57-court-costs/section-57115-execution-on-judgments-attorneys-fees-and-costs#:~:text=Section%2057.115%20%2D%20Execution%20on%20judgments%3B%20attorney’s%20fees%20and%20costs%20(,with%20execution%20on%20a%20judgment.

casetext.com/statute/florida-statutes/title-xli-statute-of-frauds-fraudulent-transfers-and-general-assignments/chapter-726-fraudulent-transfers/section-726108-remedies-of-creditors/analysis?citingPage=1&sort=relevance