Presentation on theme: "Collecting a Judgment Small Claims Court Advisory Program of the Legal Aid Society of Orange County Revised 4-19-2010."— Presentation transcript:
Collecting a Judgment Small Claims Court Advisory Program of the Legal Aid Society of Orange County Revised 4-19-2010
Collection Overview The judgment creditor must take affirmative steps to collect the judgment The Court will not collect the judgment for you A Small Claims judgment becomes final and enforceable 30 days after the clerk has mailed the Notice of Entry of Judgment If the defendant files an appeal and loses, the judgment becomes enforceable 10 days after the clerk mails the notice
How to Collect A. Individual *Wages *Bank Accounts *Real Property Lien *Debtor Examination *Bench Warrant
How to Collect B. Business *Till Tap *Keeper *Debtor Examination
How to Collect C. Spouse *Wages *Accounts D. Other *Out-of-State Debtor *Personal Property *Licenses
How to Collect From An Individual Levy on Debtor’s wages Levy on Debtor’s checking or other bank accounts Put a Lien on Debtor’s property Conduct a Judgment Debtor’s Examination
Collecting From Wages 1.Complete a Writ of Execution (EJ-130) and an Application for Earnings Withholding Order (WG-001) and have it issued by the clerk 2.Take both forms to the Sheriff’s Office 3.Levying office will prepare an Earnings Withholding Order and serve it on the employer along with Employer’s Return
Collecting From Wages 4. The employer serves the papers on the employee The employee has ten days to file a Claim of Exemption WG-006 or the employer will garnish the wages
Collecting From Wages If the Judgment creditor thinks the Claim of Exemption is unjustified or wants more than is provided in the claim, the creditor may file a Notice of Opposition to the Claim of Exemption WG-009 and a Notice of Hearing on Claim of Exemption WG-010/EJ-175
Collecting From Wages 5.The employer completes the Employer’s Return explaining how much the employee earns and how often they are paid. This is sent to the levying officer, who then forwards it to the judgment creditor
Collecting From Wages 6.The employer sends the money to the levying officer. The levying officer then sends a check to the judgment creditor. This may take more than 30 days.
Collecting From Accounts To levy a bank account, the debtor’s name on the judgment and the name on the account must match. If judgment is against John Smith, Creditor can only collect from John Smith’s personal account
Collecting From Accounts Most funds are not exempt. Examples of exempt funds are Public Benefits, Retirement Plans, Insurance Proceeds, and Financial Aid Joint bank accounts can be levied, but the co-owners will have an opportunity to object
Collecting From Accounts 1.Find bank location 2.File a Writ of Execution with the clerk for $15 and make 3 copies. The writ is good for 180 days
Collecting From Accounts 3.Contact Sheriff’s Office and provide Levying officer with Writ of Execution and Instruction Sheet Including: Name and street address of financial institution Name of account holder Date when levy should be performed
Collecting From Accounts 4.Levying officer will use Writ of Execution and written instruction to fill out Notice of Levy (EJ-150) and serve it on bank 5.Once the Levying officer collects the proceeds from the levy he will forward them to the creditor 6.Debtor can file claim of exemption EJ-160. 7.Creditor can file Notice of Opposition EJ- 170 and Notice of hearing WG-010/EJ-175
Collecting from an Individual Real Property Lien The Judgment Creditor may put a lien on any land, house, or other building the debtor owns Real Estate liens are valid for 10 years, and can be renewed for another 10 years provided that the judgment is renewed
Collecting from an Individual Real Property Lien 1.Get a copy of the Entry of Judgment (SC- 130) 2.Go to the Justice Center where the Judgment was entered. Pay a fee for each Abstract of Judgment EJ-001 that you file 3.Record Abstract of Judgment EJ-001 with Recorder’s Office in each county where debtor owns property
Individual Debtor Examination Requires debtor to appear in Court and answer questions about wages, bank accounts, property, or anything else that could be used to pay the judgment
Individual Debtor Examination 1.To set hearing, pay a $40 fee and file the Application for Order to Produce Statement of Assets and to Appear for Examination (SC- 134) with the clerk of the court 2.A sheriff/marshal/reg. process server must Personally serve a copy of the form along with a blank copy of the Judgment Debtor’s Statement of Assets (SC-133)
Individual Debtor Examination Both the Application and the Statement of Assets must be served at least 10 calendar days before the hearing The creditor can also require the judgment debtor to bring specific documents by filing and serving a Small Claims Subpoena and Declaration (SC- 107)
Individual Debtor Examination 3. At the hearing, parties will be sworn in and usually directed to conduct the hearing outside of the courtroom. It is up to the Judgment Creditor to conduct this hearing. If the debtor refuses to cooperate, the creditor should ask the judge for assistance
Individual Debtor Examination Creditor may have Judge order Debtor to turn over assets in their possession The following are sample questions you can ask at a Judgment Debtor’s Examination What is your home address?
Individual Debtor Examination Are you married? If so, what is your spouse's first name, maiden name, and last name? Are you presently employed? If so, by whom and at what address?
Individual Debtor Examination Do you or your spouse have any Bank, Checking accounts? If so, what is the name of the bank and branch and what are the account numbers and present balances?
Individual Debtor Examination Ask about the small claims advisor’s fact sheet If debtor does not show up, you may ask the court to issue a bench warrant
Bench Warrant A bench Warrant is a court order directing the Sheriff to arrest and bring the judgment debtor to court. The cost to file for Failure to Appear for Examination of Judgment Debtor is $50.
Collecting From a Business Have Sheriff perform a “Till Tap” Put a “Keeper” in the business Levy on a bank account Conduct a Judgment Debtor’s Examination
Collecting From a Business (Till Tap) Till Tap is ideal if Debtor is a business with a cash register. For an $85 fee, Sheriff will go to the business and take money from the register up to the amount of the judgment
Collecting From a Business (Till Tap) 1.File a Writ of Execution (EJ-130) and file it with the clerk. Pay the fee 2.Then, take 3 copies of Writ of Execution to the Sheriff and complete Sheriff Instruction Sheet (L-1176)
Collecting From a Business (Till Tap) 3.On the Sheriff Instructions Sheet (L- 1176): Pay the fee State that you want a Till Tap Provide a business address and best time to perform Till Tap Sign the form
Collecting From a Business (Till Tap) 4.Sheriff will perform Till Tap and report outcome in about a week to creditor If there is not enough money in the register to pay the judgment, the creditor must pay another fee each time the sheriff goes back
Collecting From a Business (Keeper) For a $205 fee, the sheriff will put a “Keeper” in the debtor’s business and remain there for 8 hours, taking all the funds that come in until the judgment is paid. The keeper can collect cash or checks
Collecting From a Business (Keeper) 1.Pay fee to file a Writ of Execution (EJ-130) with the clerk and then take it to the Sheriff’s Office. 2.On the Sheriff Instructions Sheet (L-1176): Pay the fee State that you want a keeper Provide an address and best time Sign the form
Collecting From a Business (Keeper) 3.The sheriff will notify the creditor of the outcome in about a week. You must pay another fee each time the sheriff goes back
Collecting From a Business (Debtor Examination) Debtor must appear in Court to answer questions about existence and location of salary, bank accounts, property, or anything else that could be used to pay the judgment
Collecting From a Business (Debtor Examination) 1.To set hearing, pay a $40 fee to file the Application for Order to Produce Statement of Assets and to Appear for Examination (SC-134) with the clerk of the court 2.Serve a copy of the form along with a blank copy of the Judgment Debtor’s Statement of Assets (SC-133)
Collecting From a Business (Debtor Examination) Both forms must be served at least 10 calendar days before the hearing The creditor can also require the judgment debtor bring specific documents by filing a Small Claims Subpoena and Declaration (SC-107)
Collecting From a Business (Debtor Examination) Sample questions for a Judgment Debtor’s Examination Where are your corporate headquarters? What are your business bank account numbers?
Collecting From a Business (Debtor Examination) Are there computers at your business? Do you have outstanding account receivables?
Debtor is Married If a debtor is married you may be able to collect from a spouse’s earnings or property Income earned by both spouses and most property accumulated during the marriage is considered jointly owned You can garnish the non-debtor spouse’s wages if you obtain a court order
Debtor is Married If the debt was incurred before marriage, you cannot collect from the non-debtor spouse’s wages if they are deposited in a separate bank account to which the debtor has no access You can collect from the non-debtor spouse’s separate property only if your judgment is for a debt incurred during marriage for food, clothing, shelter or other necessities of life
Debtor is Married 1.Complete Request for Court Order and Answer (SC-105) Request an order to collect from a spouse 2.Show sheriff a copy of the order and follow procedures for wage garnishment, etc.
Other Ways to Collect (Out-of-State Debtor) If debtor moves out of state, simply record your judgment with the state that debtor now resides. Mail a certified copy of the original judgment to the clerk along with an affidavit showing your and the debtor’s names and addresses. The judgment becomes a valid part of the court record and you can begin your collection efforts, following the collection laws of the new state.
Other Ways to Collect (Licenses) Judgment from an auto accident case, contact the DMV in order to suspend the debtor’s license if claim relates to debtor’s drivers license If debtor is a California licensed contractor, contact the State License Board if the judgment relates to debtor’s license If debtor is a Licensed Real Estate Agent, contact California Department of Real Estate if judgment relates to debtor’s license.
Recovering Post Judgment Costs 1.File a Memorandum of Costs (MC- 012) with the clerk to make the Judgment Debtor responsible for costs incurred since the judgment 2.Then, send a copy to the Judgment Debtor
Recovering Post Judgment Costs If costs exceed $100, the clerk will send your request to the judge to approve You must file within 2 ½ years of incurring the cost
FAQ’s How do I find the person to collect my judgment? How do I locate a bank account of a judgment debtor? How do I find out if the judgment debtor has money in the account?
FAQ’s How do I levy the bank account of a spouse of a judgment debtor? How do I locate and place a lien on property? Who do I file the abstract of judgment with? How do I find out where the judgment debtor works?