Ch6. Enforcement of Judgments — Writs, Garnishment, and Provisional Remedies

Enforcement of Judgments — Overview

Judgment enforcement:
  A money judgment does not automatically transfer assets.
  The judgment creditor must use post-judgment enforcement
  mechanisms to compel the judgment debtor to pay.

Types of enforcement instruments:
  ① Final judgment (FRCP 54) — the primary enforcement basis.
  ② Consent decree / stipulated judgment.
  ③ Settlement agreement reduced to judgment.
  ④ Confession of judgment (cognovit note) — allowed in
     some states, enforced as a judgment on filing.
  ⑤ Default judgment (FRCP 55).
  ⑥ Arbitration award confirmed as a judgment (9 U.S.C. § 9).

Writ of execution:
  Court-issued directive authorizing the marshal or
  sheriff to seize and sell non-exempt debtor property.
  Issued by the court clerk on request after judgment.
  Governed by the law of the state where the district
  court sits (FRCP 69(a)(1)).

Registration of judgments in other districts:
  A judgment of one federal district court may be
  registered in any other district (28 U.S.C. § 1963)
  and enforced as if it were a judgment of that district.

Real-Property Enforcement

Judgment lien on real property:
  Recording a certified copy of the judgment in the
  county records creates a lien on the debtor's
  real property in that county.
  Priority: lien creditors rank by time of recording.

Writ of execution — real property:
  Marshal levies on identified real property.
  Property is appraised and sold at a public auction.
  Proceeds distributed: costs → secured creditors →
  judgment creditor → any surplus to debtor.

Homestead exemption:
  Every state provides a homestead exemption shielding
  some or all equity in a primary residence from
  execution (amount varies widely by state).
  Federal bankruptcy law: § 522(d)(1) — up to ~$27,900
  (indexed) under the federal exemption scheme.

Foreclosure of mortgage / deed of trust:
  A mortgagee (lienholder) enforces the security interest
  through judicial foreclosure (court-supervised sale)
  or non-judicial foreclosure (power-of-sale clause).
  Analogous to the Korean "담보경매."

Personal Property and Wage / Account Garnishment

Levy on personal property:
  Marshal physically seizes (or constructively seizes)
  the debtor's tangible personal property.
  Property is sold at a marshal's sale; proceeds applied
  to the judgment.

Exempt personal property (state law + federal law):
  Tools of the trade, professional books, motor vehicle
  up to a state-set value, household goods up to $700
  per item (federal bankruptcy § 522(d)(3)).
  → Cannot be seized to satisfy a money judgment.

Garnishment of bank accounts and wages:
  A writ of garnishment is served on a third party
  (bank, employer) who holds money belonging to
  or owed to the debtor.

  Wage garnishment limits (Consumer Credit Protection Act,
  15 U.S.C. § 1673):
    Maximum: the lesser of 25% of disposable earnings
    or the amount by which disposable earnings exceed
    30 × the federal minimum wage per week.
    Greater protection for child-support or tax judgments.

Garnishment procedure (analogous to 추심명령/전부명령):
  Assignment / turnover order:
    Court orders the third party (garnishee) to pay
    the creditor directly — the judgment creditor
    effectively "steps into" the debtor's shoes.
  Charging order:
    Used for partnership / LLC interests; creditor
    receives distributions but does not become a member.

Provisional Remedies — TRO and Preliminary Injunction

Temporary Restraining Order (TRO) (FRCP 65(b)):
  Emergency, ex parte relief available without notice
  if the movant shows:
    ① Immediate irreparable injury before the adverse
       party can be heard.
    ② Efforts to give notice or why notice should not
       be required.
  Duration: no longer than 14 days (extendable once
  for good cause).
  Purpose: preserve the status quo pending a
  preliminary-injunction hearing.

Preliminary Injunction (FRCP 65(a)):
  Requires notice and a hearing.
  Four-factor Winter test (Winter v. NRDC, 555 U.S. 7 (2008)):
    ① Likelihood of success on the merits.
    ② Likelihood of irreparable harm without relief.
    ③ Balance of equities tips in movant's favor.
    ④ Injunction is in the public interest.
  Security bond required (FRCP 65(c)) — movant must
  post bond to cover wrongful-injunction damages.

Analogous Korean concepts:
  TRO / preliminary injunction ≈ 가처분 (non-monetary).
  Pre-judgment asset freeze ≈ 가압류 (monetary claims).

Asset freeze / pre-judgment attachment:
  In federal court, governed by state law of the
  district (FRCP 64) — allows pre-judgment seizure
  of assets when the debtor may dissipate or conceal them.
  Requires a showing of likelihood of success and
  risk of asset dissipation.

Motion to dissolve:
  The restrained party may move to dissolve or modify
  the TRO or preliminary injunction at any time
  (FRCP 65(b)(4)) — analogous to the Korean 이의신청.

Types of Enforcement Instruments ★★★★★ : Final judgment, consent decree, default judgment, confirmed arbitration award. Each authorizes post-judgment collection. Memory hook: No writ without a judgment (or its equivalent)

TRO vs. Preliminary Injunction ★★★★★ : TRO — emergency, ex parte, ≤ 14 days. Preliminary injunction — notice + hearing, four-factor Winter test, bond required. Memory hook: TRO = emergency brake; PI = full stop with hearing

Wage Garnishment Limit ★★★★☆ : Maximum 25% of disposable earnings (or earnings above 30 × minimum wage). Exempt tools-of-the-trade and household goods cannot be seized. Memory hook: 25% cap — you must be left enough to live on

Practice Quizzes

Q. What is the difference between a TRO/preliminary injunction and a writ of execution?

A TRO and preliminary injunction are provisional remedies issued before a final judgment to preserve the status quo and prevent irreparable harm while the litigation is pending. They require a showing of likelihood of success and irreparable harm; a bond is usually required. A writ of execution, by contrast, is a post-judgment enforcement tool. It issues only after a final money judgment has been entered and directs the marshal to seize and sell the debtor’s non-exempt assets to satisfy the judgment. The writ requires no separate showing of likelihood — the judgment itself is the legal basis.

Q. What is the difference between a garnishment assignment/turnover order and a charging order?

A garnishment (turnover order) reaches money the garnishee (bank or employer) owes directly to the debtor — the court orders the garnishee to pay the judgment creditor instead. The creditor collects the debt or wages that would otherwise go to the debtor. A charging order is used to reach a debtor’s interest in a partnership or LLC. Because a creditor cannot force a buyout of the debtor’s membership interest, the charging order only entitles the creditor to distributions the entity actually makes to the debtor — the creditor cannot participate in management or force a sale of LLC assets.