HOW TO ENFORCE A COURT JUDGMENT – PART TWO

In Part One we reviewed the steps that a successful party, the judgment creditor, needs to take in order to enforce their judgment should the losing party, the judgment debtor, fail to pay a judgment.  We considered how to obtain further information about the debtor’s assets, how to receive money from the debtor's employer and how to obtain money from the debtor’s bank account.

In Part Two, we will look at the process for securing a lien over a debtor’s real property before turning our attention to how we can enforce a judgment against a business debtor.  Finally we will consider how to recover the costs a successful party is forced to incur when enforcing a judgment.

Securing a lien over the losing’s party’s property

By placing a lien over any real property owned by the debtor, the debtor will not be able to sell or refinance property until the judgment is paid in full.  You do not have to provide the address of the property to impose a lien, nor do you even need to know for certain that the debtor owns property.  A lien will be placed on any property that is in the name of the debtor. The best approach is to record a lien in the county or counties where the debtor resides or does business.  The judgment is valid for ten years and the lien will stay in place for the duration of the judgment.  If need be, the judgment can be renewed before the end of the ten years.

If the debtor owns property in Marin County we will need to take an issued Abstract of Judgment to the County Recorder’s Office.  The lien will be recorded for a fee of $25.  If the debtor owns property in another county, we will also need to deliver the issued Abstract of Judgment to the Recorder’s office in that county (a further small fee will be required).

Seize money of a business ("till tap")

If the judgment debtor is a business which has a cash register, we can get the Sheriff to go to the business and take money out of the register to pay the judgment and the Sheriff’s fee.  This method of collection, known as a "till tap", is favored as it is relatively quick and is not as expensive as putting a Sheriff’s "keeper" in a business, which is discussed below.

To tap the debtor's till we will need to provide the Sheriff’s Office with an issued Writ of Execution as well as Sheriff’s Instructions, including the name and address of the business and the best time of day to do the "till tap."  The Sheriff will then go to the business address, take what money is in the cash register and serve the debtor with a Notice of Levy. 

If there is not enough money in the register to pay the judgment on the day the Sheriff goes to the business address, you have the option of sending the Sheriff back on another day, although a fee will be due every time the Sheriff goes back.  The Sheriff’s fees are recoverable and can be added on to the judgment amount and other expenses.  However, there is no guarantee that a collection can be made and the Sheriff's fees will need to be paid by you regardless of the amount of money seized.

The judgment debtor may challenge the seizure of their personal property by filing a Claim of Exemption with the Sheriff.  We will then have to oppose the Claim of Exemption and a hearing date will be set for the court to consider the debtor’s objections.

Seize the money and personal property in the debtor’s business ("keeper")

If the judgment debtor is a business, we can get the Sheriff to place an individual called a "keeper" in the business for a certain period of time.  The keeper will collect money received by the business on the day or days you have paid for a keeper to be present at the business.

We can also ask the Sheriff to sell the inventory of the business. The Sheriff’s fees for a keeper can be expensive. The fees will be added to the amount that the Sheriff collects, but there is no guarantee of collection.

To appoint a keeper, we will need to provide the Sheriff’s Office with an issued Writ of Execution as well as Sheriff’s Instructions, including the name and address of the business and day that we want the keeper to be present at the business.  You will also have to pay the Sheriff’s fee.

Recovering the costs of enforcing your judgment

In the event that we have to use legal proceedings to collect the money awarded to you under a judgment, you will have to pay court fees, service fees and Sheriff’s fees.  You are entitled to add these costs to your original judgment amount provided you have not filed a Satisfaction of Judgment (see below).  You must seek the recovery of these costs within two years of the date they were incurred.  You can also claim interest at 10% annually from the date of the judgment. Lastly, you must acknowledge any payments that the judgment debtor has made on the judgment.

We will arrange for a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest to be delivered to the judgment debtor.  The person who delivers the Memorandum must complete the proof of service document on the back of the form, which we will then file the form with the court.  The debtor will have 10 days to file a motion to dispute some or all of the costs.  If no motion is filed, the clerk will add the costs to the judgment. If the debtor files a motion, we will get a notice of the time of the hearing at which the court will decide if you should get paid for the costs you have claimed.

What to do after a Judgment is paid

After you have been paid in full, you must file an Acknowledgment of Satisfaction of Judgment. If you recorded an Abstract of Judgment (to secure a lien over the debtor’s property), when you complete the Acknowledgment form you will have to name every county where you recorded the Abstract of Judgment and sign the form in front of a notary public. You must then record the Acknowledgment in each county where the Abstract of Judgment was recorded. The Recorder will charge a fee.

Recovering money awarded to you by the court can seem as a disheartening and sometimes painful process, but with a good understanding of the options available to you, the steps required and the assistance of reliable legal counsel where needed, the recovery and enforcement framework can be used effectively and efficiently. If you require advice or representation from the McGIll Law Office, please do not hesitate to contact us on 415 508 5323 or email us on inquiry@mcgill-lawoffice.com 

Content prepared by Richard Parry. © Richard Parry, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

HOW TO ENFORCE A COURT JUDGMENT – PART ONE

There may come a time when you are forced to take legal proceedings against an individual or a business to recover money owed to you, or perhaps you will need to claim compensation for a loss you have suffered, either because of physically injury or damage to your property.  If you are successful at trial or if the other party does not defend the claim, the court will order judgment in your favor.  But obtaining a judgment from the court is only the first step.  It is often the enforcement of the judgment that can be the more challenging and frustrating stage.

The McGill Law office is committed to not only helping our clients achieve the best outcome in legal proceedings, but ensuring they are able to recover the money awarded to them by the court in the most practical and efficient way.  We want to share with our readers the steps that must be taken and the options they have available when enforcing a judgment. 

We have prepared a two-part guide that we hope our readers will find informative as well as providing them with the comfort that, if they are owed a debt or are entitled to compensation, the McGill Law Office has the knowledge and experience to best represent their interests.

Introduction

Under the terms of a judgment the court will order the losing party, the “judgment debtor”, to pay a sum of money to the successful party, the “judgment creditor”.  Once you have obtained a judgment, it is up to you to enforce it, the court will not assist in collecting the money on your behalf.  Below are the legal steps that need to be taken to collect your judgment.

Requirements before you begin enforcement

You must wait at least 30 days from the date of the Entry of Judgment to begin collection.  This period gives the judgment debtor time to pay the debt in full or explore payment arrangements.  If the debtor takes no action during the 30 days, you may take steps to enforce the judgment.

During this period we will write to the other party demanding that you be paid the judgment amount immediately.  If the debtor is unable to pay the full amount immediately, we will take your instructions as to whether you are willing to accept periodic payments.  If an acceptable payment plan can be agreed between you and the debtor, we will complete a form called a Stipulation for Time Payments and a copy will be filed at court.  If we cannot agree a payment arrangement with the debtor, we will proceed to enforce the judgment using one or more of the methods below.

Demanding the losing party to disclose their assets to the court

If we need more information about the debtor’s assets in order to levy them, we will request that the court order the debtor to attend a hearing to answer questions about the debtor's assets and income.  In order to compel a debtor to attend a hearing we would make an application to the court for an order for Appearance and Examination.  The application is issued with a hearing date by the clerk of the court and must then be served on the debtor.

If the debtor fails to pay the amount specified in the Appearance and Examination, they will have to attend a hearing.  At the hearing the judge will make the debtor answer questions we have prepared, which will typically consist of questions about the real estate they own, how much income they earn and the amount of money they have in the bank.  If the debtor fails to appear for the hearing, a bench warrant may be issued for their arrest.

Receiving money from the losing party’s employer

This method of enforcement is legally referred to as an Earnings Withholding Order or Wage Garnishment, as it was historically known.  An Earnings Withholding Order requires the debtor’s employer to send up to 25% of the debtor’s net (after tax) wages to the Sheriff, who then passes it on to us on your behalf.  If the employer has already been served with an Earnings Withholding Order for the debtor, the order for withholding may not be processed until the previous order is paid off. 

In order to take this course of enforcement we will need to know where the debtor works.  We may already know this information or we may have obtained in the court’s examination of the debtor.  If the debtor is self-employed, an Earnings Withholding Order is not an enforcement option that can be pursued and we will have to consider one of the alternative methods outlined below.

We then need to serve an issued Writ of Execution and Application for Earnings for Withholding Order on the debtor’s employer.  In Marin County these documents can be served by Sheriff’s office for $35.  We will also need to complete Sheriff's Instructions that provide details of the name and address of the place of business being served.  The employer must respond to the Sheriff within 15 days confirming that the debtor works there and how frequently they are paid.  The debtor may challenge the amount of the seizure of their wages if they can prove they need part or all of earnings withheld to support themselves or their family.

Receiving money from the losing party’s bank account

Under this enforcement process the debtor’s bank account will be frozen for 10 days, during which time the debtor is notified of the levy.  The bank is then required to give any money in the account at the time of the levy, up to the judgment amount plus costs, to the Sheriff’s office.  The Sheriff holds the funds for 20 days and releases the funds to us on your behalf.  You must know both the name of the judgment debtor’s bank and which branch the debtor uses.  It is very helpful to have the account number, however it is not necessary.  If needed, information can be obtained from the court’s examination of the debtor.

We will give the Sheriff's office a Writ of Execution and Sheriff’s Instructions.  When the Sheriff freezes the account, the judgment debtor will receive a Notice of Levy.  The judgment debtor may oppose the levy of bank funds by filing a Claim of Exemption with the Sheriff listed on the Notice of Levy.  We will then have to oppose the Claim of Exemption and a hearing date will be set for the court to hear the debtor’s objections.

In Part Two of Enforcing a Court Judgment we will look at securing a lien over property, seizing money of a business, seizing personal property of a business and recovering the costs of enforcing your judgment.

Content prepared by Richard Parry. © Richard Parry, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

That Fatal February Car Crash

A big heavy SUV, a Cadillac Escalade, more massive and unwieldy still because it was towing a trailer, smashed into the car ahead.  The Escalade and its train might have kept a safe interval between it and the car in its front but it was not able to brake in time to avoid the collision.   As often happens in such cases, the Escalade’s driver suffered no injuries as a result of the collision.   Kim Howe, the driver of the stricken car, was not so lucky.  She is dead, pronounced so at the scene of the accident.

"Perhaps she did have just an instant of realization. Horror."

When her car was hit, Kim had no time to react.  There was nothing at all that she could do.  Perhaps she did have just an instant of realization.   Horror.  The force of the rear end collision pushed Kim’s car right into the lane of oncoming traffic on California’s scenic and fast moving Pacific Coast Highway.  Kim’s car suffered a crushing head-on collision with a big Humvee travelling at high speed in the opposite direction.  This second crash crushed the front end of Kim’s passenger car as it crushed the life out of Kim.

It was recently reported that Caitlyn Jenner, who was still Bruce Jenner at the time of the accident, will not be charged with manslaughter for rear-ending Kim Howe’s car.  Nonetheless, Jenner has been sued for negligently causing Howe’s death.  The amount of evidence to prove Jenner’s liability in this “wrongful death” case is less than that needed to prove a crime and the issues are somewhat easier for Kim Howe’s heirs than they were for the Los Angeles District Attorney who investigated Jenner for criminal manslaughter.  Jenner’s insurance company is, no doubt, handling the lawsuit.  Perhaps Jenner has high enough insurance coverage limits for the value that will put on Kim Howe’s life.  Perhaps not.  If Jenner does not have high enough insurance limits, well, then, some of the proceeds from Jenner’s television show may end up in the hands of Kim Howe’s family.  

"One thing is for sure and that is that Jenner was driving too fast to stop the big heavy Escalade before it rear ended Kim Howe's much less massive car."

The point of the Los Angeles District Attorney’s investigation was to determine if it could be proven, beyond a reasonable doubt, that Jenner violated the vehicle code and that this violation was the cause of Kim Howe’s death.  It seems that the focus was on California’s basic speed law.  This law says that, regardless of the posted speed limit, no driver should drive faster than is safe given the conditions.   One thing is for sure and that is that Jenner was driving too fast to stop the big heavy Escalade before it rear ended Kim Howe’s much less massive car.  This, apparently, was not enough for the District Attorney to file manslaughter charges.

The question to be determined in the civil lawsuit is a bit different from the question in the criminal investigation.  The standard of proof is different as well.  Kim’s family must only prove that Jenner was negligent and this proof need not be “beyond a reasonable doubt”.   If a preponderance of the evidence shows that Jenner was not reasonably prudent in controlling the Escalade and that this caused Kim’s death, Jenner is liable and must pay damages.   How much?  Well, what is the value of a life?  What was the value of Kim’s life?

"If the case is settled, it is likely that we will never know what value was placed on Kim Howe's life."

It is likely that we will hear reported sometime in the future that the civil case against Jenner has been settled.  I write this with some confidence because civil cases, in which there is any arguable merit in the claim, are usually settled without a trial.  If the case is settled, it is likely that we will never know what value was placed on Kim Howe’s life.  It is likely that this value will be kept confidential.  If Kim’s family and Jenner’s insurer and Jenner are unable to settle the case, we will certainly hear the blow by blow, day after day in newspapers, on television, in social media and on the radio.  This “wall to wall” coverage will be due to Jenner’s celebrity, the monetary value of which will ironically likely increase as the value of Kim Howe’s life is determined by a California jury.   

What is a life worth?  How does the justice system place a value on a broken bone, on a compressed or severed spinal cord, on a traumatically injured brain or on the myriad other injuries that are inflicted on innocent people each and every day?  These losses and injuries are not exactly equitable to dollars.  The simple solution at the McGill Law Office is that, for every personal injury client whom we represent, our aim is to obtain the maximum possible monetary recovery and nothing less.

Content prepared by Edmond McGill. © Edmond McGill, 2015

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This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.