By Stephen E. Hyam, Esq.
I recently discussed the judgment debtor examination process in a Clarktalk post. In this article, we address other post-judgment enforcement options available to creditors that will help increase the chances of satisfying their judgments.
Options for Asset Investigation
In addition to judgment debtor examinations, there are other methods to investigate a judgment debtor’s assets. Similar to pre-judgment litigation, a judgment creditor may require that the judgment debtor answer a series of questions, called written interrogatories, and produce documents, called requests for production. When served with interrogatories and requests for production, the receiving party must respond within 30 days. If the debtor fails to respond, the judgment creditor may seek a Court order compelling the response and production. Such order is obtained by filing a motion with the Court. Bringing a motion will cause delays because, absent exigent circumstances, there is at least a 16 court day delay between filing the motion and hearing the motion. Additionally, since the hearing must be set when the Court has availability, there can be a delay even greater than 16 court days. While interrogatories and requests for production are initially less expensive than a judgment debtor examination, they may be less effective.
Once you have information related to the judgment debtor’s assets, the creditor can take a number of different steps to enforce the judgment.
Liens on Personal and Real Property
If a judgment debtor owns real property in California, a judgment creditor may record an Abstract of Judgment with the county recorder where the property is located. Recording the abstract provides a blanket lien on all real property in that county owned by the judgment debtor – even if the judgment creditor is unaware of the judgment debtor’s ownership of the property. The lien generally lasts 10 years from the date of the judgment. The lien gives the judgment creditor the right to foreclose upon the property. The lien will also give notice to the public that the creditor has right to payment if the property is sold, creating a cloud on title.
A personal property lien can be asserted against certain business personal property by filing the appropriate form with the California Secretary of State. The lien gives notice of the judgment creditor’s priority over later lienholders.
Wage garnishment orders compel the judgment debtor’s employer to withhold a portion of the judgment debtor’s earnings. Wages, in this case, include salary, bonuses, commissions, and the like. Wage garnishments do not take every dollar that is paid to the employee. Generally, at least 75% of take home/after tax earnings (after deductions for social security, federal and state taxes, state disability insurance, etc.) are automatically exempt from garnishment. The judgment debtor may also seek a Court order to have even more of the take-home income exempted from the enforcement. Conversely, on a motion to the Court, a judgment debtor may seek an equitable division of the judgment debtor’s earnings, but such order must factor in the needs of the judgment debtor and anyone who the judgment debtor is required to support.
If the judgment debtor has a right to payments due in the future that are not wages, a judgment creditor may apply to the Court for an assignment order. Assignment orders compel a third party to pay the judgment creditor instead of the judgment debtor. Assignment orders may be useful for capturing payment streams from royalty agreements, rents, accounts receivable, and general intangibles, such as promissory notes. A judgment creditor must file a motion with the Court for the assignment order. The assignment order, if issued, must then be served on the third party. Should the third party ignore the order and pay the judgment debtor, the third party is liable to the judgment creditor for the payment.
Assets of a partnership or a limited liability company are not subject to enforcement of the judgment debtor partner’s/member’s liability. However, the judgment debtor’s partnership or membership interest is subject to enforcement. A charging order charges the judgment debtor’s share of partnership or limited liability company profits and any other monies due, or to become due, to the debtor. If a creditor wants to pursue those interests, the judgment creditor must file a motion with the Court. Service of the motion creates a lien on the judgment debtor’s interests that lasts until the judgment becomes unenforceable. Naturally, if the motion is denied, the lien is extinguished. If the motion for a charging order is granted, the creditor may foreclose on the judgment debtor’s interest, applying the proceeds from the foreclosure to the amount of the judgment.
These are only a few of the options that judgment creditors have to enforce their judgment. With many options available, it is important that you and your counsel carefully consider which enforcement procedures are worthwhile. Clark & Trevithick’s attorneys are skilled in enforcement procedures and can help you fashion a plan that will help you efficiently and effectively satisfy your judgment.
Thank you for joining us on ClarkTalk! We look forward to seeing you again on this forum. Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions about judgment enforcement options , please feel free to contact Stephen E. Hyam at firstname.lastname@example.org by email or telephonically at (213) 629-5700.