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Willlyjo
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Maybe Zigner could answer that.
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Judgment collection
- Thread starter Dirtman1
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CourtClerk
Senior Member
Follow me sweetie. I'll try and type slowly...
You told him to get ANOTHER writ. He can't, because he already has one outstanding.....
And when was the last time you saw property get seized as a result of a SMALL CLAIMS case? What's that? You haven't???? See, it has nothing to do with what I know about where I work, it's about what I know about what CODE says.
And dude... I know more about the southern counties in CA than you'll EVER know. Trust me on this.
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Willlyjo
Guest
Now that you've tooted your horn, let me make myself clear. I didn't tell the Op to get "another" writ, the Op asked if he could get another writ and proceed further. Nobody addressed that question until I did in my last couple posts when I said a Writ of Execution is good for 180 days.
I was just implying the importance of having a writ in force in order to have the marshal, process server or sheriff seize property.
And no, I don't trust you on your knowledge in comparison to mine. If your reading comprehension is such that you would interpret my post as saying the Op needs to get another writ of execution to proceed with seizure (when it is understood the one he has is sufficient since it is still active), then I can't rely on anything you say about the Southern California Court system since you may also misinterprete codes as well.
As far as small claims goes, if the Op can get a writ of execution to seize a bank account, then that same writ will allow him to seize assets (property) as well. Has it been done before? Probably. Can it be done? Yes.
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Willyjo – I think some of your remarks warrant discussion/correction. Not the bit about the Marshal/Sheriff. That’s unimportant. At one time, many counties used the Marshal. Today, I would have agreed with Court Clerk, because I don’t know of any that still do. But the Code prudently speaks of the “levying officer” and “levying authority”, and it’s a matter of county jurisdiction what agency is tasked with that responsibility, so if they still use the Marshal in your neck of the woods, fine. For the OP, it’s the Marshal or Sheriff.
I’m referring to things like:
“perform a "Till Tap" in which he orders the Merchant to give him the money that is in the cash register and that comes in via customers for a certain period of time.”
No. A till tap is a “one and done” procedure for money in the register(s). There is no continuing effect over time. You can pay to have it done again the next day and the next. However, the OP says it isn’t practical but, in mentioning payments that constitute “deposits”, perhaps implies that an Assignment Order would be. Serving an Assignment Order on customers would certainly put a crimp in business.
“go to the Marshal's office in the Superior Court and get a "Writ of Execution"
Misleading. A writ is a court order. It’s issued by the court. The levying officer, be it Sheriff or Marshal, can’t issue one.
“You can even get a court order to seize property without a Writ of Execution as noted when you research California Civil Code of Procedure Sections 699.010--699.090.”
You might want to read those Code sections a little more closely, beginning at Sect. 699.010:
“699.010. Except as otherwise provided by statute, this chapter governs enforcement of a money judgment by a writ of execution.”
The court order that you refer to is predicated on the response to a Notice of Levy, which is predicated on a writ of execution. If the judgment debtor voluntary relinquishes property in response to service of a Notice of Levy, maybe you would argue that, technically, a writ of execution wasn’t needed, but I would disagree and suggest the argument is sophistry.
“As far as small claims goes, if the Op can get a writ of execution to seize a bank account, then that same writ will allow him to seize assets (property) as well. Has it been done before? Probably. Can it be done? Yes.”
Yes, but . . . . It appears to me that the OP is seeking a practical solution, not an academic analysis. In fact, the OP has use of any remedy provided in the Enforcement of Judgments Act, but are they all feasible? On that point, I’m inclined to think that Court Clerk is probably right.
The jurisdictional maximum in Small Claims is $7,500.00. Let’s assume that was the judgment amount. The OP hasn’t mentioned the nature of the judgment debtor’s business, aside from it being DIY. To “seize and sell”, the OP is going to have to post surety for (1) cost of transport by a bonded moving company, (2) storage in a bonded warehouse at a rental charge per sq. ft. until time of sale (3) cost of publishing notice of sale and (4) auctioneer’s fees at the very least. The proceeds of sale are going to have to cover those expenses and leave a sufficient balance to satisfy or reduce the judgment. If the judgment is for $100K and the debtor sells mink coats, ok. If the judgment is $7.5K and the debtor is a make-your-own-picture-frame shop, probably not really feasible, despite being possible.
I’m referring to things like:
“perform a "Till Tap" in which he orders the Merchant to give him the money that is in the cash register and that comes in via customers for a certain period of time.”
No. A till tap is a “one and done” procedure for money in the register(s). There is no continuing effect over time. You can pay to have it done again the next day and the next. However, the OP says it isn’t practical but, in mentioning payments that constitute “deposits”, perhaps implies that an Assignment Order would be. Serving an Assignment Order on customers would certainly put a crimp in business.
“go to the Marshal's office in the Superior Court and get a "Writ of Execution"
Misleading. A writ is a court order. It’s issued by the court. The levying officer, be it Sheriff or Marshal, can’t issue one.
“You can even get a court order to seize property without a Writ of Execution as noted when you research California Civil Code of Procedure Sections 699.010--699.090.”
You might want to read those Code sections a little more closely, beginning at Sect. 699.010:
“699.010. Except as otherwise provided by statute, this chapter governs enforcement of a money judgment by a writ of execution.”
The court order that you refer to is predicated on the response to a Notice of Levy, which is predicated on a writ of execution. If the judgment debtor voluntary relinquishes property in response to service of a Notice of Levy, maybe you would argue that, technically, a writ of execution wasn’t needed, but I would disagree and suggest the argument is sophistry.
“As far as small claims goes, if the Op can get a writ of execution to seize a bank account, then that same writ will allow him to seize assets (property) as well. Has it been done before? Probably. Can it be done? Yes.”
Yes, but . . . . It appears to me that the OP is seeking a practical solution, not an academic analysis. In fact, the OP has use of any remedy provided in the Enforcement of Judgments Act, but are they all feasible? On that point, I’m inclined to think that Court Clerk is probably right.
The jurisdictional maximum in Small Claims is $7,500.00. Let’s assume that was the judgment amount. The OP hasn’t mentioned the nature of the judgment debtor’s business, aside from it being DIY. To “seize and sell”, the OP is going to have to post surety for (1) cost of transport by a bonded moving company, (2) storage in a bonded warehouse at a rental charge per sq. ft. until time of sale (3) cost of publishing notice of sale and (4) auctioneer’s fees at the very least. The proceeds of sale are going to have to cover those expenses and leave a sufficient balance to satisfy or reduce the judgment. If the judgment is for $100K and the debtor sells mink coats, ok. If the judgment is $7.5K and the debtor is a make-your-own-picture-frame shop, probably not really feasible, despite being possible.
Since it has reached the point that I only look in and post in the forum about twice a year, I’m surprising myself by a follow-up. But it occurred to me that addressing Willyjo didn’t really help the OP, and that’s what FA should be about.
OP, if you’re still reading this thread after two months, details about an Assignment Order can be found starting at Code of Civil Procedure sect. 708.512. It could be a little complicated for a novice, and I guarantee that it would be the first time that a Small Claims bench officer saw such a motion. But, done right, it shouldn’t be rejected. You really haven’t told us enough about the judgment debtor to know the best remedy, so you’ll have to evaluate options for yourself.
Based on what you have told us, I’d consider use of a “keeper”. Unlike a till tap, a keeper is a Marshal or Sheriff’s deputy who is stationed by the register for a maximum of 8 hours and takes money and negotiable instruments as they come in. The keeper also has authority to take inventory (in case of a subsequent “seize and sell”) and can even inspect the check register and determine the current bank account. A keeper is not inexpensive (currently $300), but the cost, like other statutory enforcement costs, can be added to the amount of the judgment. It’s the cheapest, simplest method that is likely to be productive.
Perhaps, more importantly (and this is for you to evaluate), the presence of an armed, uniformed deputy stationed next to the register all day can be a real deterrent to business. The dramatic effect can be as or more important than the recovery. The owner wants that guy out and may propose a payment plan.
Finally, you can request that the levying authority inform you when the keeper is installed and, normally, you can go and accompany the keeper during inventory.
Evaluate the likelihood of success and contact the Marshal/Sheriff to ensure that they don’t use a private party (non-uniformed and unarmed) to provide this service and that you will be called and can be present.
With due respect to you, the reason that 80%+ of Small Claims judgments go uncollected is that people do things backwards. The best way to ensure that your time and money will be well-spent is to investigate the (putative) debtor in advance and have a plan for enforcement before you even file. In your case, the debtor knows more than you do about enforcement avoidance. You have to get smarter/bolder than he is. Good luck
OP, if you’re still reading this thread after two months, details about an Assignment Order can be found starting at Code of Civil Procedure sect. 708.512. It could be a little complicated for a novice, and I guarantee that it would be the first time that a Small Claims bench officer saw such a motion. But, done right, it shouldn’t be rejected. You really haven’t told us enough about the judgment debtor to know the best remedy, so you’ll have to evaluate options for yourself.
Based on what you have told us, I’d consider use of a “keeper”. Unlike a till tap, a keeper is a Marshal or Sheriff’s deputy who is stationed by the register for a maximum of 8 hours and takes money and negotiable instruments as they come in. The keeper also has authority to take inventory (in case of a subsequent “seize and sell”) and can even inspect the check register and determine the current bank account. A keeper is not inexpensive (currently $300), but the cost, like other statutory enforcement costs, can be added to the amount of the judgment. It’s the cheapest, simplest method that is likely to be productive.
Perhaps, more importantly (and this is for you to evaluate), the presence of an armed, uniformed deputy stationed next to the register all day can be a real deterrent to business. The dramatic effect can be as or more important than the recovery. The owner wants that guy out and may propose a payment plan.
Finally, you can request that the levying authority inform you when the keeper is installed and, normally, you can go and accompany the keeper during inventory.
Evaluate the likelihood of success and contact the Marshal/Sheriff to ensure that they don’t use a private party (non-uniformed and unarmed) to provide this service and that you will be called and can be present.
With due respect to you, the reason that 80%+ of Small Claims judgments go uncollected is that people do things backwards. The best way to ensure that your time and money will be well-spent is to investigate the (putative) debtor in advance and have a plan for enforcement before you even file. In your case, the debtor knows more than you do about enforcement avoidance. You have to get smarter/bolder than he is. Good luck
W
Willlyjo
Guest
Well said...I find myself finding it hard to disagree with most of what you said. Although I'm a little bit familiar with "keeper", I didn't really think about it when I made my responses. That definitely would be the best way to go about it.Since it has reached the point that I only look in and post in the forum about twice a year, I’m surprising myself by a follow-up. But it occurred to me that addressing Willyjo didn’t really help the OP, and that’s what FA should be about.
OP, if you’re still reading this thread after two months, details about an Assignment Order can be found starting at Code of Civil Procedure sect. 708.512. It could be a little complicated for a novice, and I guarantee that it would be the first time that a Small Claims bench officer saw such a motion. But, done right, it shouldn’t be rejected. You really haven’t told us enough about the judgment debtor to know the best remedy, so you’ll have to evaluate options for yourself.
Based on what you have told us, I’d consider use of a “keeper”. Unlike a till tap, a keeper is a Marshal or Sheriff’s deputy who is stationed by the register for a maximum of 8 hours and takes money and negotiable instruments as they come in. The keeper also has authority to take inventory (in case of a subsequent “seize and sell”
Perhaps, more importantly (and this is for you to evaluate), the presence of an armed, uniformed deputy stationed next to the register all day can be a real deterrent to business. The dramatic effect can be as or more important than the recovery. The owner wants that guy out and may propose a payment plan.
Finally, you can request that the levying authority inform you when the keeper is installed and, normally, you can go and accompany the keeper during inventory.
Evaluate the likelihood of success and contact the Marshal/Sheriff to ensure that they don’t use a private party (non-uniformed and unarmed) to provide this service and that you will be called and can be present.
With due respect to you, the reason that 80%+ of Small Claims judgments go uncollected is that people do things backwards. The best way to ensure that your time and money will be well-spent is to investigate the (putative) debtor in advance and have a plan for enforcement before you even file. In your case, the debtor knows more than you do about enforcement avoidance. You have to get smarter/bolder than he is. Good luck
Also, if seizing assets were warranted, most of the time, seizing computer equipment, fax machine, cash register...etc. doesn't entail more than placing it in the back seat of the levying officer's car and transported to a storage place of very reasonable cost to store. And...as you say, such costs would be added to the judgment debtor's judgment.
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Dang, Willy. I’d like to get on with more important things, but I just knew that there would be a “final word”, and perverse curiosity drew me back to see what it would be.
So you “find myself finding it hard to disagree with most of what you said.” Oh, the joy. Oh, the rapture. To have that endorsement. Be still my beating heart.
Willy, that would have been enough. But you’re fixated on seizure of assets and, to the extent that it is another sound-out to the OP, you’re just wrong, and that misleads readers. Your further statement leads me to conclude that either (1) you’ve never done it or (2) if your Marshal does it in the way that you suggest, your whole county is going to be sued someday, and it will lose.
Size of property/fixtures is not the issue. I once satisfied a claim for $223K against a jeweler by using a pre-judgment writ of attachment to seize inventory. Property sufficient to do that would fit in one cardboard box in the back seat of a car. Do you honestly think that could get thrown in the trunk, put in a closet and disposed of at the next local yard sale, instead of being inventoried and notice of sale published in a newspaper of general circulation for the statutory period (at a cost of about $900)? (The defendant paid before sale, but seizure ain’t gonna happen any other way.)
Now, it you’re talking writ of possession or a turnover order, there can be a direct transfer from judgment debtor to levying officer to judgment creditor (after receipt and inventory), but you’re not; you’re talking about a “seize and sell”. For readers trying to learn from this thread, the bottom line is that Court Clerk was right. The costs of doing a “seize and sell” for a Small Claims judgment make its cost-benefit almost unfathomable. To the OP who, in the second post, spoke of the “core principle”, learn that, in litigation, only principal counts, and it better earn interest.
Willy, what happens when you initiate that “seize and sell” only to find out that the postage meter is leased from Pitney Bowes, the register is leased from National Cash Register, they’re both secured with priority claims, and the used fax has a present value of $30.00? What happens if the debtor is operating on an SBA loan and all assets and accounts receivable – the whole business – is subject to a UCC-1? Kiss that expense good-bye and give the stuff back.
Readers, if you’re considering a “seize and sell” after these caveats, at least do yourself a favor and pay a public records provider $15-20 to check on perfected security agreements (UCC-1 filings) to see who’s in line ahead of you. Oh yes, also check on tax liens: IRS, EDD, FTB. If the Franchise Tax Board is allowing the debtor to operate just so the back state taxes can be paid, they're not going to let the judgment creditor take the whole enchilada and shut him down.
Willy, you’ve been called out in other forums, and it’s happening again. I haven’t the time to play Marley’s Ghost and follow you reminding you of your missteps. You’re probably somebody who handled a case or two pro per and now knows a little more than the guy on the right and a lot less than the guy on the left. Most questions have been answered 100 times before and can be answered again and more quickly using the “search” function. If you choose to post, spend some time to also learn, rather than shooting from the hip.
And if you really must respond to this, don’t feel compelled to first re-post the whole bloody thing. It’s just a waste of bandwidth. Now I’m outta here. Tell Zigner “not this time”.
So you “find myself finding it hard to disagree with most of what you said.” Oh, the joy. Oh, the rapture. To have that endorsement. Be still my beating heart.
Willy, that would have been enough. But you’re fixated on seizure of assets and, to the extent that it is another sound-out to the OP, you’re just wrong, and that misleads readers. Your further statement leads me to conclude that either (1) you’ve never done it or (2) if your Marshal does it in the way that you suggest, your whole county is going to be sued someday, and it will lose.
Size of property/fixtures is not the issue. I once satisfied a claim for $223K against a jeweler by using a pre-judgment writ of attachment to seize inventory. Property sufficient to do that would fit in one cardboard box in the back seat of a car. Do you honestly think that could get thrown in the trunk, put in a closet and disposed of at the next local yard sale, instead of being inventoried and notice of sale published in a newspaper of general circulation for the statutory period (at a cost of about $900)? (The defendant paid before sale, but seizure ain’t gonna happen any other way.)
Now, it you’re talking writ of possession or a turnover order, there can be a direct transfer from judgment debtor to levying officer to judgment creditor (after receipt and inventory), but you’re not; you’re talking about a “seize and sell”. For readers trying to learn from this thread, the bottom line is that Court Clerk was right. The costs of doing a “seize and sell” for a Small Claims judgment make its cost-benefit almost unfathomable. To the OP who, in the second post, spoke of the “core principle”, learn that, in litigation, only principal counts, and it better earn interest.
Willy, what happens when you initiate that “seize and sell” only to find out that the postage meter is leased from Pitney Bowes, the register is leased from National Cash Register, they’re both secured with priority claims, and the used fax has a present value of $30.00? What happens if the debtor is operating on an SBA loan and all assets and accounts receivable – the whole business – is subject to a UCC-1? Kiss that expense good-bye and give the stuff back.
Readers, if you’re considering a “seize and sell” after these caveats, at least do yourself a favor and pay a public records provider $15-20 to check on perfected security agreements (UCC-1 filings) to see who’s in line ahead of you. Oh yes, also check on tax liens: IRS, EDD, FTB. If the Franchise Tax Board is allowing the debtor to operate just so the back state taxes can be paid, they're not going to let the judgment creditor take the whole enchilada and shut him down.
Willy, you’ve been called out in other forums, and it’s happening again. I haven’t the time to play Marley’s Ghost and follow you reminding you of your missteps. You’re probably somebody who handled a case or two pro per and now knows a little more than the guy on the right and a lot less than the guy on the left. Most questions have been answered 100 times before and can be answered again and more quickly using the “search” function. If you choose to post, spend some time to also learn, rather than shooting from the hip.
And if you really must respond to this, don’t feel compelled to first re-post the whole bloody thing. It’s just a waste of bandwidth. Now I’m outta here. Tell Zigner “not this time”.
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