Collecting a judgement from a self employed judgement debtor

[smallclaim]

What is the name of your state? California

Me and my husband won a small claims case against a daycare provider. She filed an appeal and we won that as well. The problem is collecting the judgement. When we did the Order of Examination, she pretty much declared that she is broke. She has a negative balance in her bank account and no property to her name. Her only income is the income from running her daycare and she says that after monthly expenses and rent, she is left with a couple hundred dollars.
Since she is self employed and is running a licensed business, is there any way I can garnish the money coming in from her customers? I read about the "Order of Assignment". Can that be enforced in this situation? I just want to know if there is a way I can get the money that comes in as daycare income from her.

Thanks a lot!

 

[Chien]

Simple answer: yes.

I'm reading the problem in the first paragraph, thinking of the solution and you offer it in the second paragraph.

You'll need to identify the daycare clients. Can you? If you can't without another ORAP, those can only be done once every 6 months, since she appeared for the last one. Then you'll need to file a Motion for an Assignment Order. Can you? You can PM for help on the Motion. Just the thought of that being presented to a SC Court is enough to enlist help. The bench officer will be stunned. Where did you come up with that, if you don't mind my asking? If you understand an Assignment Order, you probably don't need help.

 

[smallclaim]

Yes I do have the list of her daycare clients. How do I go about filing this motion? I read about the order of assignment on the small claims website as well as some other websites. However, I'm not sure if it applies only to special situations or whether any judgement creditor can file it.
I just don't see any other way out at this point.

 

[Chien]

I read about the order of assignment on the small claims website

Ahhh. Probably dcatz, another CA commercial creditors’ rights attorney.

However, I'm not sure if it applies only to special situations or whether any judgement creditor can file it.

No and yes. It’s at Calif. Code of Civil Procedure sect. 708.510 et seq. and you can read that here:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=708.510-708.560

The only hitch is that a SC bench officer is probably unaccustomed to seeing one and it’s not a simple filing. By that I mean that Small Claims is an expedited and relatively informal process. Bench officers are accustomed to relatively simple motions that can be reviewed and decided quickly. A Motion for an Assignment Order can be reviewed quickly, but it’s exceptional for Small Claims (most creditors wouldn’t know what it was). My suggestion would be that, if you’re going to file one, you contact the Clerk of the Small Claims courtroom, explain your intentions and ask if the matter can/should be referred to a Law and Motion courtroom for this particular purpose. It’s your statutory right as a judgment creditor to request this enforcement tool, but it ordinarily would be reviewed by a judge’s law clerk beforehand. SC doesn’t work that way, and I’d hate to see you get short-shrift because of it.

Once you get the Order, you’ll have to serve it on the clients. Since you have to give Notice of the Motion to the judgment debtor, that may be enough to get you paid. The prospect of other clients being told to pay you instead of her because she has an outstanding judgment is not great PR. If such an offer is made, think about it. Avoiding the necessity of serving multiple parties is avoiding a lot of wear and tear for a judgment that’s within SC jurisdiction, but it’s a powerful tool, if there is no other way.

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The offer of a sample motion via PM remains open.

 

[smallclaim]

Thanks a lot for this information. I will go and talk to the court clerk sometime this week. I really appreciate your offer of helping me with the motion. I will ping you when I see you online.

Thanks.

 

[Chien]

I think that’s a good idea. If you need a sample motion, just use PM (Private Messaging) with a valid email address or do the same with dcatz (our practices are very close). Don’t depend on seeing me online. I have matters pending and we both come and go. Either may post frequently and either may have a long hiatus.

 

[smallclaim]

Thank you. I have sent you both a PM.