Turn-over and assignment

What is the name of your state? Florida

I am filing a Motion for Contempt against the defendant for failing to serve copies he was ordered to supply in the Order to Compel. He supplied copies to the court, but not to me. I had requested them to be sent Certified Mail. He also didn't supply copies of all documents requested in the Order.

I have seen Chien and DCATZ mention Turn-over order, but cannot find it in the Florida Rules of Civil Procedure. I thought I'd give it a try if there is a Contempt Hearing. Is it valid in Florida?

I also saw where DCATZ suggested doing an assignment order on the defendant's landlord. I believe the lease is in his girlfriend's name, so don't think that would work. I also can't find Assignment Order in the Florida Rules of Civil Procedure. Is it valid in Florida? Also, can you do the Assignment against his Auto payment? What if his girlfriend is making the payment out of her checking account? Maybe do an Assignment against her for any monies he gives her...

Thanks & RegardsWhat is the name of your state?

Wow, someone who searches and reads, rather than simply posts! Ok, you have my attention. Chien only posts on the Debt Collection forum so, in Tom Wolfe's phrase, I'll be the flak catcher for this one. But you can trust me - you'd get the same answer from Chien.

And to get a complete answer, I hope you'll bear with me for a little background and explanation, because I think you have the rights, but I agree that the terminology doesn't seem to exist. Chien and I are from the same state - California. It has probably the most extensive body of statutes relating to judgment enforcement, and all the terminology doesn't exist there either. Finally, while I believe that the rights exist in Florida, I'm not completely sure about the steps to effectuate them.

An assignment order is a creature of statute. It is a right to payments due or to become due to the judgment debtor and it is obtained by a court order requiring the debtor to assign those rights to the judgment creditor. The relevant portion of the statute reads:

708.510. (a) Except as otherwise provided by law, upon application
of the judgment creditor on noticed motion, the court may order the
judgment debtor to assign to the judgment creditor or to a receiver
appointed pursuant to Article 7 (commencing with Section 708.610) all
or part of a right to payment due or to become due, whether or not
the right is conditioned on future developments, including but not
limited to the following types of payments:
(1) Wages due from the federal government that are not subject to
withholding under an earnings withholding order.
(2) Rents.
(3) Commissions.
(4) Royalties.
(5) Payments due from a patent or copyright.
(6) Insurance policy loan value.

So you could reach all rent owed to a landlord-debtor, or royalties owed to a musician or writer-debtor or other types of revenue that is more erratic and variable than would be reached by a wage garnishment. I may have referred to money due from the debtor of a debtor. That is not the girlfriend-car situation, unless she has a contractual obligation to pay for him.

A turnover order is not even specifically referenced in California. It must be "read into" the statutes. Once a writ of execution issues, the judgment creditor may apply to the Court for an order directing the debtor to transfer to the levying officer (1) tangible personal property and (2) documentary evidence of title to property (like a certificate of vehicle ownership) or a debt (like a promissory note). And this can be done pending any claim of exemption that might be filed.

Now in both instances - assignment order or turnover order - we're talking about non-exempt personal property that you would otherwise have the right to seize pursuant to judgment but that can be difficult to find and/or reach. That's why I say that the right exists in most every state. It's the procedure that you need to work out.

In California, an assignment order requires a noticed motion, and I suspect that it would be the same elsewhere but that it could be done, if the creditor can show the court that there are non-exempt assets in or coming into the custody of a specific third party. In that respect, the result differs very little from a bank levy.

A request for a turnover order can be made orally and ex parte, say at the end of a judgment debtor exam. To be prudent, you'd have a form Order with blanks for the name of the debtor and the property to be transferred. As long as you've already obtained a writ of execution and asset exams are normally conducted in a courtroom, you already have a judge who can sign and a bailiff who can take.

After looking at your Civil Procedure & Practice statutes, sect. 55.205 and 55.208, pertaining to judgment liens and writs of execution, I think adequate rights are conferred to be entitled to the property I've discussed. FRCP 1.570 provides that enforcement of a money judgment "shall be by execution, writ of garnishment or other appropriate process or proceeding", which I think could encompass either assignment or turnover. And FRCP 1.550 provides that execution "shall issue on the judgment on the oral request of the party entitled to it". So I think that the building blocks are there, and it's a matter of identifying the property and persuading the Court of the need.

Thank you for the information.

I did some additional Google searches and have seen "Motion to Compel Debtor to Turn-over". I have completed the "Writ of Execution", but haven't acted on it. He still has not supplied the copy of his title to his truck, so I don't know if it is in his name alone. I'll give it a try if there is a Contempt hearing.

Here is the piece that talks about serving the Landlord that I thought maybe I could apply to his auto loan.

Failed attempt to serve Order of Examination dated 12-11-2005 https://forum.freeadvice.com/showthread.php?t=295971&highlight=failed+attempt+serve

Record an Abstract of Judgment in the county in which you live. That prevents her from buying or selling property in that county, without paying you. If you're truly determined, hire someone to follow her to work, and start a wage garnishment. If she rents, rather than owns the house that she lives in, get an assignment order from the court and serve it on the landlord. An assignment order requires the judgment debtor to pay you what she would have paid the landlord. When the landlord doesn't get paid and threatens eviction, your debtor may become more cooperative. But, if the house is in her friend's name and he's paying rent, you'll have to look for another way.

Hopefully he'll eventually be in jail for 1 of 4 reasons
1. Contempt (not supplying the documents in the Order).
2. Perjury (lying on the first "Fact Information sheet").
3. Workers comp fraud (he hurt his back the week the judge ruled he was not head of household regarding wage garnishment, but I have seen his truck with a ladder in the back and gave pictures to WC ).
4. Working without a license (since Hurricane Wilma it is a felony for a contractor to work without a license).

Thanks again

You DO do research. But please note that response was directed to a California creditor.

Ok, nothing changes from the original response but, as you'll see from the excerpted portion of the prior post, a perfected assignment order really should be served on the landlord and the judgment debtor, because it's the judgment debtor who must assign the right. If it becomes relevant in your case, I'd suggest that you serve the order on the debtor and the debtor of a debtor.

As to landing in jail, unfortunately I think you'll find that courts can be a little weak when it comes to punishing for civil contempt or the perjury of lying on the first "Fact Information sheet", because jails tend to be overstocked and undermanned. There are exceptions, but they tend to arise in high-profile cases and not in Small Claims. (Fortunately, courts can be a bit more serious about punishing disobedience to an assignment or turnover Order, but other kinds of sanctions still tend to predominate over jail.)

But you have raised another interesting point:

Working without a license (since Hurricane Wilma it is a felony for a contractor to work without a license).

Click to expand...

In California, contractors must be licensed, and an unsatisfied civil judgment will result in the suspension and ultimate revocation of a license. You might want to check with the licensing authority in Florida about the full details and consequences of working without a license, if you don't know them already. That may give you a lot of leverage.

Good luck. You may either carve out new law for your case or convince the judge that you're a smart-ass, but I think you're entitled to those rights.

Unfortunately he is not licensed. I got his name from 2 good friends of mine and I figured what could a painter do... Well, he can take a deposit and not show up is what he can do. Needless to say my friends are humiliated.

They have to either have a State license or a license in every city they do business in. If he had the State license the state has a Construction Fund. If you have won a case against a licensed contractor and they don't pay they will pay you out of the fund. I reported him to the county licensing back in July. They have tried to get a hold of him, but he doesn't respond. Last I spoke to the inspector they were sending a detective out to talk to him to explain what could happen if he continues to work without a license. The inspector was also intrigued when I mentioned he was out on Worker's Comp and said he was going to set up a surveillance. If I hadn't filed a suit they would have tried to get my money back.

I have asked for coercive and compensatory fines in the Motion for Contempt. Coercive in the amount of $5.00 per day since the time limit to supply the documents. Compensatory in that I spent a day trying to track down his auto loan and couldn't find it because he gave the wrong bank.

Regards