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After the Judgment – What Happens Now? Part 2

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 Garnishments

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.

Assignment Orders

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.

Charging Orders

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.

Conclusion

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 shyam@clarktrev.com by email or telephonically at (213) 629-5700.

0 comments on “Judgment Debtor Examinations – After the Judgment – What Happens Now?”

Judgment Debtor Examinations – After the Judgment – What Happens Now?

By Stephen E. Hyam, Esq.

You filed the lawsuit, litigated zealously, and now the judgment is in your favor. Once there is a final judgment in litigation, you are the judgment creditor and you going to be paid, right?  Not necessarily.  Often, the judgment debtor, the person who has been found to owe the money, will simply not make the payment.  This is when the next phase of the case must begin – enforcing the judgment.

Judgment Enforcement Seeks Assets

The purpose of judgment enforcement is to receive payment. First you need to find out if the judgment debtor has assets.  There are many different statutory rights that a judgment creditor can use to discover and execute against a judgment debtor’s assets.  One such right is a judgment debtor examination.  A judgment debtor examination compels a judgment debtor to testify about his or her assets.

Examination Is Under Oath

The judgment debtor examination is taken pursuant to a court order.  It is taken at the courthouse, after the witness has been sworn to tell the truth.  The witness can be the judgment debtor or a third party who has information about the judgment debtor’s assets or owes money to the judgment debtor.  Often, a court reporter is hired to take an accurate transcript of the examination.  The judgment debtor examination can be accompanied by a subpoena that orders the witness to produce documents.

Since the purpose of the examination is to obtain information concerning the judgment debtor’s assets, the party taking the examination is given a wide scope of inquiry. There are few restrictions on the subject matter of judgment debtor examinations if the inquiry could reveal the existence and location of a judgement debtor’s assets.  The purpose of a judgment debtor examination is “to leave no stone unturned in the search for assets which might be used to satisfy the judgment.”  Topics for examination include bank accounts; present employment; future employment prospects; questions about future or contingent interests such as inheritances; and payments due from third parties to the judgment debtor.  The judgment debtor can also be required to explain why real and personal property was transferred to third parties.

During litigation, there is a statutory privilege that one spouse/domestic partner cannot be compelled to testify against the other. However, this restriction is not applicable to judgment debtor examinations.  While the privilege applies to confidential communications between spouses/registered domestic partners, a judgment creditor may ask about property in which the debtor has an interest that is in the possession or control of the spouse/domestic partner, or any debt over $250 owed to the debtor by his or her spouse/domestic partner, because the existence of assets is not considered a confidential communication.

Disputes about the scope of the inquiry are often handled by the Court on the same day as the examination, so the investigation is not unduly delayed.

Third Parties May Be Ordered To Appear

Third parties often have information related to the judgment debtor’s assets. As a result, the post-judgment examination procedure may also be used with persons or entities who are not subject to the judgment, but may have information regarding the judgment debtor’s assets.  With a declaration establishing good cause, a judgment creditor may obtain a court order compelling a third party to attend an examination and (pursuant to a subpoena) bring documents.  The scope of the examination of a third party is essentially the same – to identify and locate a debtor’s assets.

Judgment Debtor Examinations Create An Automatic Lien on All Personal Property Assets

Judgment debtor examinations create an automatic lien on the debtor’s personal property, giving the creditor an advantage over unsecured creditors as long as the debtor does not file for bankruptcy or conduct an assignment for the benefit of creditors within 90 days of the examination.

Are Judgment Debtor Examinations The Best Choice?

The debtor examination gives the creditor the opportunity to ask questions and review documents. Bank records, for example, give clues about the sources of funds received by the judgment debtor and to whom the judgment debtor makes payments.  In certain situations, a judgment debtor examination may not be the best option.  Every case has unique facts and you should consult with legal counsel to determine the best way to collect on 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 debtor examinations, please feel free to contact Stephen E. Hyam at shyam@clarktrev.com by email or telephonically at (213) 629-5700.

 

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