Collecting Restitution Through Civil Process

Prior to September 23, 2011, the ability for a victim of a crime in Ohio to collect pursuant to a restitution order was stymied by ORC 2929.18. The key problem was the ability to obtain a Certificate of Judgment to enable the victim to transfer the matter to the civil docket for purposes of legal execution.  The old statute lacked the appropriate language to enable collection action. 

Effective September 23, 2011, this statute has been amended to add specific language enabling the victim of a crime, among others, to “[o]btain from the clerk of the court in which the judgment was entered a certificate of judgment that shall be in the same manner and form as a certificate of judgment issued in a civil action,” for purposes of collection of the Order.  See ORC 2929.18 (D)(1), as amended by 129th General Assembly File No. 25, HB 5, § 1, eff. 9/23/2011. 

The statute, as amended, further provides that a financial sanction of restitution imposed pursuant to 2929.18 (A)(1) or (B)(8) is an order in favor of the victim of the offender’s criminal act that can be collected through a certificate of judgment.  The process is then set forth in division (D)(1) of 2929.18.  Once the certificate of judgment is obtained, the victim may proceed with execution as described in 2929.18 (D)(2), or through an order as described in division (D)(3) of 2929.18, whereby the offender shall be considered for purposes of the collection as the judgment debtor. The victim, among others, as set forth in 2929.18, may do any of the following:

1. Obtain from the clerk of the court in which the judgment was entered a certificate of judgment that shall be in the same manner and form as a certificate of judgment issued in a civil action;
2. Obtain execution of the judgment or order through any available procedure, including:
a. An execution against the property of the judgment debtor under Chapter 2329. of the Revised Code;
b. An execution against the person of the judgment debtor under Chapter 2331. of the Revised Code;
c. A proceeding in aid of execution under Chapter 2333. of the Revised Code, including:
(i) A proceeding for the examination of the judgment debtor under sections 2333.09 to 2333.12 and sections 2333.15 to 2333.27 of the Revised Code;
(ii) A proceeding for attachment of the person of the judgment debtor under section 2333.28 of the Revised Code;
(iii) A creditor’s suit under section 2333.01 of the Revised Code.
d. The attachment of the property of the judgment debtor under Chapter 2715. of the Revised Code;
e. The garnishment of the property of the judgment debtor under Chapter 2716. of the Revised Code.
3. Obtain an order for the assignment of wages of the judgment debtor under section 1321.33 of the Revised Code.

The amendment of this statute may seem small, but the impact and effect are immense.  This amendment will reduce the time and steps required to return the victim to whole – no longer requiring the filing of a separate civil action.  The statute does provide that no “financial sanction imposed under this section … shall preclude a victim from bringing a civil action against the offender.”  ORC 2929.18 (H).  A separate civil action may allow the victim to seek additional damages, such as punitive damages and/or pain and suffering, not just reimbursement of certain costs and expenses.  Restitution was designed and is based on the victim’s expenses incurred as a result of the crime as well as the offender’s ability to pay. 

Specifically, in Ohio, the court may base the amount of restitution it orders on “an amount recommended by the victim, the offender, a pre-sentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.”  ORC 2929.18(A)(1).  Taking into account the ability of the offender to pay lends support to the position that a restitution order should be non-dischargeable in a later bankruptcy filing. 

As held in Kelly v. Robinson, 479 U.S. 36, restitution obligations were found to be non-dischargeable in Chapter 7 proceedings, because they fall within Code 523(a)(7)'s exception to discharge for a debt that is a government "fine, penalty, or forfeiture . . . and is not compensation for actual pecuniary loss."   That said, however, the courts differ in the treatment of a restitution order in the case of a Chapter 13 proceeding. 

In Pennsylvania Public Welfare Dept. v. Davenport, the court found that the Code's language and structure demonstrate that restitution obligations constitute "debts" within the meaning of 101(11) and are therefore dischargeable under Chapter 13. Pp. 557-564.  101(4)(a)'s definition of a "claim" as a "right to payment" broadly contemplates any enforceable obligation of the debtor, including a restitution order.  Unlike 523(a)(7), which explicitly ties its application to the purpose of the [495 U.S. 552, 553] compensation, 104(4)(A) makes no reference to the objectives the State seeks to serve in imposing an obligation.  Pennsylvania Public Welfare Dept. v. Davenport, 495 U.S. 552 (1990), Certiorari to the United States Court of Appeals for the Third Circuit, No.89-156.

Pursuant to the Bankruptcy Code, debts not discharged in Chapter 13 include certain long term obligations (such as a home mortgage), debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. (1328(a)(3).  To the extent that they are not fully paid under the Chapter 13 plan, the debtor will still be responsible for these debts after the bankruptcy case has concluded.  The following test provides the key. 

11 USC 523 provides that a debt is exempted from discharge, to the extent said debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit.  It cannot compensate for actual pecuniary loss, other than a tax penalty. Thus, the three requirements to find a restitution order non-dischargeable under this provision are: (1) a fine, penalty, or forfeiture; (2) payable to and for the benefit of a governmental unit; (3) that is not compensation for actual pecuniary loss.  Thus, where a restitution order is solely to compensate a victim for actual loss, and is not payable to and for the benefit of a governmental unit (such as for court and other costs), it will be dischargeable. 

The change in Ohio’s legislation will no doubt be widespread in its effect.  One issue left for interpretation is that of application of this amendment.  The 129th General Assembly did not include language to identify whether the amendment is retroactive, or only effective as to orders issued on or after September 23, 2011.

Sara Donnersbach is a Partner in the Cleveland office of Weltman, Weinberg & Reis Co., LPA where she manages the Governmental, Healthcare, Commercial Utility and Landlord/Tenant Collections Groups.