Someone owes you money or breached a contract. Someone defrauded you or caused you damage due to negligence or greed. You have filed suit as described in our article on American Litigation or commenced arbitration as described in our article on Arbitration. After presenting your case you were awarded a judgment in your favor.
You have a piece of paper that looks quite impressive awarding you monetary damages and perhaps costs and attorneys fees. You feel vindicated and you want your money. You send it to the opposing party and, instead of paying it, they either ignore you or still refuse to pay.
This article shall outline your next steps in actually collecting the judgment from the defendant who refuses to pay. Or, as a client put it, “Changing a piece of paper that I can wave in the air to a piece of paper I can put in the bank…namely, cash.”
In the case of a verdict in Court, the award is reduced to a written document entitled a “judgment.” In the case of an arbitration award, the award of the arbitrator, to be enforceable, must be entered in a court of law after a formal petition filed in court to enter judgment of the arbitrator with the Court then scheduling a hearing to determine the validity of the award. Since the courts routinely enforce awards of arbitrators, this procedure is usually pro forma though it can be contested. The grounds for overruling an arbitrator’s award are extremely limited in California and normally, within sixty days of filing the petition to confirm the award of the arbitrator, it is reduced to a court judgment by the judge.
A judgment is more than a piece of paper. It allows the party holding it to utilize the Courts to directly seize assets of the judgment debtor whether they are cash or realty. It can be entered in foreign locales, if necessary, and is usually good for at least ten years and can be renewed to remain in force for much longer. It accrues interest at rates varying depending on the jurisdiction, but usually at seven percent and often at ten percent. The interest can be added to the underlying judgment and earn interest on itself. Usually, the interest will double the size of the judgment every seven years or so.
Our office has collected on judgments in months…and in some cases, when the judgment debtor appeared destitute, waited over ten years and collected in full, with interest, at that time.
It is a very powerful tool if utilized correctly and if all the powers it contains are carefully analyzed and utilized in concert as necessary. If utilized without forethought, it can often result in failure to collect as debtors move assets outside the reach of the various tools available to the judgment debtor.
It is as important to plan implementation of the collection process as it was to plan preparation of the case.
The Tools of Collection:
1. THE WRIT OF EXECUTION.
Once one has a judgment, one has the power to ask the Court to issue a Writ of Execution which allows the Sheriff of the county in which property is located to:
Seize bank accounts of any type including checking and savings.
Seize any hard assets that can be found (e.g. equipment, tools, machinery, etc. This would also include automobiles, trucks, paintings, jewelry, etc.)
Seize stocks, bonds, certificates of deposit, etc. or other types of ownership rights both of publicly traded companies and even of companies owned and run by the judgment debtor. It can also allow seizing of leasehold rights, e.g. the lease of the judgment debtor.
To seize debts owed to the judgment debtor (e.g. to get the debtor of the judgment debtor to make all payments to you rather than your judgment debtor.)
One can have the Sheriff enter the business premises of an ongoing business and seize its various assets and literally stand at the cash register and take money that the customers are paying to the judgment debtor. And, at the end of the day, seize the cash register, itself.
And, in general, seize any asset of value owned by the judgment debtor that the law does not exempt from execution. (Most states allow the judgment debtor to retain certain minimum assets such as a bed, desk, chair, etc.)
2. THE ABSTRACT OF JUDGMENT.
Real property owned by the judgment debtor may also be seized. In this respect, a document called an “abstract of judgment” is filed in the County Recorder’s office and acts as an automatic lien against any property owned by the debtor within the county. Note that this is not state wide…only property within a single county is liened. Thus, often judgment creditors will record Abstracts in two or more counties, usually those in which the debtor lives or does business.
One does not even have to know if there is property owned by the debtor in the county…merely by recording the Abstract, one has an automatic lien against any such property, even if acquired after the abstract is recorded.
Normally, title insurance companies will not allow the debtor to sell or even borrow on the property without paying off all Abstracts of Judgment and this is a typical way for a creditor, long, long after the Abstract is recorded, to be paid. This office has received calls from Title Companies asking how much is needed to pay off our client’s Abstract as much as fifteen years after recorded. As one client put it, “it is a time bomb waiting for the defendant to buy some property some time in the future…”
3. THE ORDER OF EXAMINATION.
The judgment creditor, of course, wishes to locate the assets of the judgment debtor so they can be attached. The judgment debtor is not likely to make that easy and will probably attempt to both hide assets and transfer them to third parties.
A judgment creditor is allowed to file in the Court a request for an Order of Examination by which a judgment debtor is ordered to the Court to answer questions under oath as to the location of assets and failure to appear can result in a warrant for the arrest of the judgment debtor-probably the only instance of “debtor’s prison” still left for an American citizen. Once the judgment debtor answers under oath as to the location of assets, the creditor can ask the Court to order the debtor not to move the assets and seek a write of execution on the spot.
4. TRANSFERS TO DEFRAUD CREDITORS.
A typical reaction of a debtor who knows attempts at debt collection is coming his way is to transfer assets into the name of friends or relatives. However, unless fair market value is paid for the transfers (in which case the debtor must account for what happened to the money) the transferee can end up as a defendant in another legal action brought by the creditor, namely a claim that the transfer was one to defraud creditors. The transferee can end up not only having to pay the costs of defense, but will have to transfer to the creditor the full value of what was transferred. Often debtors end up involving friends and family in very acrimonious litigation and more than one family has fallen apart as relatives were dragged into bitter litigation.
THE GAME: FINDING THE ASSETS BEFORE THEY DISAPPEAR.
It requires calm and careful planning to achieve successful collection in most cases. Ideally, one wants to obtain the Writ of Execution and seize assets before the judgment debtor has a chance to realize the assets have been found and move them. Also, other creditors may be chasing the same assets and if the assets are finite, the other creditors can be more of a problem than the judgment debtor.
The usual steps are:
Retaining a special investigator to locate assets.
Obtaining Writs of execution secretly and delivering them to the Sheriff to serve.
Seizing the asset or garnishing the wages before the debtor even knows the collection effort is on the way.
Debtors often are extremely alert for the first few months after the trial but have a habit of relaxing as the months go by. It is common for a clever judgment creditor to hold off all collection efforts for months, even years, then suddenly attach assets to the shock of the debtor.
Thus timing becomes critical. If the debtor knows you are actively seeking to collect, the bank accounts known to you will be changed before you can get to the Sheriff with the information. Often a creditor will have a colleague sell some products to a judgment debtor, get the banking information from his payment-then seize the account.
Such tactics are myriad and require careful implementation. But, as one debtor once told this writer, “the hassle of always worrying about you guys looking over my shoulder was worse than just paying the judgment. It’s a relief. I don’t have to worry about my accounts suddenly being seized.
RESTRICTIONS ON COLLECTIONS
Every state has certain restrictions on assets that can be seized and the usual ones confronted are garnishing wages (all States only allow a certain percentage to be seized at a time so that the garnishee has enough to live on) and selling a family residence (most States allow the family to retain a residence if the equity is below a certain amount and require a full hearing before the family home can be seized unless there is a Deed of Trust involved.)
While the various restrictions must be carefully noted, it has been our experience that they seldom stop effective collection assuming a debtor has any significant assets. The restrictions normally protect the debtor already close to insolvency and those are seldom worth pursuing in any event. Recall that taxes take precedence over private debts thus a truly insolvent debtor will often end up paying whatever sums are left over to the government.
Further, harassing the debtor by inappropriate telephone calls, embarrassing scenes in public etc. can result in violation of local law. Good legal advice is required before any particular action is taken.
The most sweeping restriction on collection can occur if the Debtor files for protection under the Bankruptcy laws in which case the venue switches to the Federal Bankruptcy Court which has its own rules and regulations. It is vital to note that is can be a crime for a creditor to ignore the stay of actions issued by the Bankruptcy Court and severe sanctions can be imposed upon a creditor who ignores those restrictions. If a notice of bankruptcy is received, call your lawyer immediately.
Do not immediately give up if a debtor files bankruptcy. Often collection is still possible, though the efforts will be made with an eye to the Federal bankruptcy law rather than the State enforcement of judgment laws.
Most judgments are collected but all judgments require skill to collect. It is often difficult for a party who has spent months or years fighting a claim to realize that the victory in court was not the end of the process but merely the beginning of another process. There is at times a feeling of frustration that the powerful enforcement tools must be applied to finally obtain the sums awarded.
There are ways to get security for debt even before a legal action is necessary to collect and the reader should review our article on Promissory Notes for a description of the type of protection a creditor can obtain via UCC-1s or Deeds of Trusts or personal guaranties.
But the creditor without such weapons should not despair. Collection may take longer and require more money and effort…but is usually possible. Keep in mind that although you are upset and frustrated by the need to use the tools to collect…the debtor will be far more annoyed than you in the long run.