Non Support Debt Collection From Ex Spouse

[ProPerDoper]

What is the name of your state? California

After 7 years of divorce litigation, I finally got my case to trial. My ex owes me a significant sum as the equalizing payment due, and sanctions per. FL Sect. 271 Attorneys fees for bad conduct.

I obtained an writ of execution, and a court order via noticed motion for wage garnishment. She has filed claim of exemption, and I have opposed with notice of hearing and date for hearing set. I believe that her request has no merit, as CCP states she must request claim by noticed motion within 3 days of hearing on request for wage garnishment order or claim is waived. CCP 708.550 (a) Additionally, claim has merit only if no previous hearing was held on wage garnishment. CCP 706.051 (a)

Am I on the right track above with regards to my opposing argument and interpretation of the Code of Civil Procedure?

Additionally, I have learned through further discovery that my ex owns an Annuity valued at just under the amount due. It is listed as "non-qualified", in other words not a qualified 401k or IRA and thus not subject to exclusion from collection efforts.

Step one is to serve on the financial institution a Writ of Attachment. At this point only a copy of the statement is in hand with the account number redacted, and the central location of the company in CT. My understanding is that any registered process server can serve the Writ of Attachment without further/specific court order?
CCP. 488.080

My objective then is to file a NOM and request for liquidation (sale) order and turnover order. CCP 699.040

Am I on the right track here? Any suggestions or advice as to anything not considered would be appreciated.

 

[ProPerDoper]

Or Pursue Another Direction?

It appears that serving a Writ of Attachment would be difficult at best due to the fact that the account number and address of the financial institution have been redacted on the statement which I have.

Alternate action? What if I filed an OSC (required for temporary orders vs. NOM) in the family court and requested temporary orders to freeze the account pending the hearing? Then at the hearing request an order for liquidation of the annuity and turnover to me within 15 days?

What remedy can I request if she has disposed or transferred title/ownership of the account already? Is it appropriate to request the court order her to transfer back titile in her name within 10 days, or would I first have to request an order for joinder of the party that the account has been transferred to, and then an order for that party to transfer the account back to her name, prior to turnover order?

 

[Chien]

I have to suggest that you retain counsel – either a family law practitioner experienced in enforcement orders or a collection attorney. I’d opt for the former as a first choice, if I could find one.

You’ve done some reading, and that’s commendable. But you’re “all over the field”, and generally misdirected. There’s too much to cover online to chart a clear path for you to continue pro per.

The decision is yours, but CCP 708.550 pertains to an Assignment Order, and that’s not a part of your case.

CCP 706.051(a) doesn’t say what you seem to believe it does, and CCP 488.080 relates to a Writ of Attachment, which is a pre-judgment remedy, is different from a writ of execution and doesn’t appear to be relevant to your case either.

 

[ProPerDoper]

Thanks for the response. Your direction is exactly why I posted, as I have to make a decision whether or not to proceed in Pro Per or retain counsel. I have significant experience in several areas of law, including Family Law, Personal Injury, Bankruptcy, and Appellate, all due to the nastiest divorce you can imagine. Long story....

After having to answer to four separate Family Law attorneys, and battle a PI case as connected litigation, ( I won an atty fee award IRMO Askew) I learned a lot.

Having said that, I'm only beginning my training as collections counsel.

Isn't a wage garnishment and assignment order one in the same? The order I obtained is pursuant to CCP 706.011, and, the advice on obtaining a Writ of Attachment actually came from a collections attorney, to "remedy concerns of asset disposal prior to the hearing".

I have unbundled services provided to me in the area of Family Law. The guy's an expert, and assisted in helping me to prevail against one of the toughest lawyers in the county. I'm in pro per, she's paying a $450/hr atty, and I obtain primary custody of our kids when she was a stay at home primary caregiver prior to separation. Don't try this at home kids....but I was extremely fortunate. After 12 hearings, they didn't win one thing against me.

After 18 mos, she finally fired him too, and refused to pay the remaining $78K owed to him. He filed civil suit for Breach of Warranty, and she has already paid more than the fee balance in battling him, and they still have to go before a panel for binding arbitration.

So you see.....there really was no option but to proceed in pro per if I was to retain any assets to care for my kids.

The question now is.....can I locate unbundled services in collections law, or must I watch a significant portion of the judgment dissipate in the form of atty fees just to collect?

If anything in my response prompts you to provide additional input....I'd welcome the direction!

 

[Chien]

Avoiding this is the reason I answered as I did but . . .

A writ of attachment is a pre-judgment remedy. Because it allows post-judgment rights without the Constitutional niceties of trial and judgment, there are very meticulous requirements. However, if you’re granted a writ of attachment, you can get a writ of execution to go with it. I see no place for an attachment proceeding at this stage of the game, but correct me, if I’m wrong.

An Assignment Order is a post-judgment remedy. In simple terms, it gives you the right to collect directly from debtors of the debtor. Examples used in the statute include rent, commission, royalties, patent or copyright licensing fees etc. – money owed to the debtor – another example could be outstanding receivables owed to a debtor company. I didn’t see how that figured in either.

An Attachment Order gives you every post-judgment right that you might later acquire – writ of execution and right to garnish to name two, but it appears you already have those rights. An assignment Order gives you what was explained. That can be a great deal, but it’s unrelated to garnishment except to the extent that it does apply to “wages due from the Federal Government that are not subject to withholding under an earnings withholding order”, if that’s relevant.

I don’t understand what is meant by “locate unbundled services in collection law”. In the meantime, I would offer the observations that your state offers perhaps the broadest range of options of any state. They are set out in what is called the Enforcement of Judgments Act, which begins at CCP 680.101. You can start reading but don’t grab pieces here and there, which was what the first post reflected.

If you're willing to do the homework, go to a law library and research in a 2-vol. publication called Enforcing Judgments and Debts, published by The Rutter Group.

Another option is to find a seasoned collection attorney who will work on a contingent fee basis

We don’t know enough about your ex to give you any more focused direction.

 

[ProPerDoper]

Again....thanks. Especially for the extensive effort. Very helpful.

Starting from the end of your post, and working back:

My Ex is nuts....absolutely crazy. What more do you want to know?

Unbundled services is the term used around her for advice/direction from an attorney for a fee. Same as limited scope representation, but usually court appearances are in pro per.

I have studied the Rutter Group "Enforcement of Judgments" which is where I came across Sect. 9.18, "Application for Turnover Order", which states:

"Once the writ of execution is issued, the judgment creditor may apply to the court, either ex parte or on noticed motion, if so directed by the court or required by court rule, for an order under CCP 699.040 directing the judgment debtor to transfer either or both of the following to the levying officer:

* Possesion of the property on which the levy is attempted if the levy is made by taking possession of the property;

*Possession of documentory evidence of title to the property or debt.

Then it goes on to say that the court may issue such an order on a showing of need, and that it must be personally served on the judgment debtor.

So....she owns an annuity valued at just under the judgment amount. (Assuming she hasn't transferred title yet)

I have a judgment and a writ of execution, and the local sherrif's office already has a file opened. I have a wage garnishment order, and that process has started, pending the upcoming hearing on her claim of exemption. (note that CCP 706.105 says that she claim an exemption if no prior hearing has been held on the garnishment. A hearing was held, and the judge granted my request for garnishment)

It also appears as you say that CCP 706.550 does not apply to wage garnishment? This was one of my greatest areas of need for understanding, as I suspected as much. Still, her claims that she needs her income (100%) to care for her family where considered within her opposition at the hearing for wage garnishment. No new legal facts or arguments have been presented, which leaves only a significant change in circumstance as a defense on her part.


So I'd like to file a motion in family court and ask for a turnover order for her annuity pursuant to CCP 699.040? Judge will not take likely her characterization of the account as a 401k in her discovery responses. (twice)

I've learned just enough to be dangerous. But with help I can be effective!

 

[Chien]

Turnover Order is different again. May work in Family Court - never tired myself

Must run for the moment. Will try to consider alternatives, if that doesn't work, but would need to know about your ex. Enforcement options are based on knowledge of the debtor.

Most creditors never do the work you've done. Few have heard of a Turnover Order or Assignment Order. You have but don't fully understand them. Interesting conumdrum.

 

[ProPerDoper]

I'm anxious to learn of any additional thoughts that come to mind to help my my conundrum!

Lookie what else I stumbled onto: http://www.collectfromyourdebtor.com/

I've placed a call to the author to see if his guide will help me specifically.

 

[Chien]

Book looks swell. I should stop posting here and do the same thing. I have enough pro bono clients. The only drawback is that professionals in judgment recovery know the contents and more and there are few pro per creditors who are willing to do the work that you’ve done. For you, it may be a useful adjunct to your library; at three times the cost for updates, the Rutter publication is probably that much better. Use them both, because it doesn’t appear that the book is state-specific.

The book talks about using P.I.s. If the amount is big enough and you can’t locate assets yourself, it’s something to consider. The best have talents beyond those of the common man. Just don’t ask how they did it. I go to more seminars and conferences with P.I.s than I do with other attorneys and can give you references.

You’ve read what a Turnover Order can do. I’ll explain why I don’t think it helps you in Family Court:
It normally becomes relevant in this context:
1) You schedule an asset exam, get our Order for Appearance and serve you ex. She appears at the time and place scheduled. (We just made a huge leap of logic and departed from reality. I’ll return and explain.)
2) You come armed with a Turnover Order, completed but blank as to assets and ready for the judge to sign.
3) First question: (not a question) “Please empty your purse and wallet and put the contents on the table. Please empty your pockets and do the same thing. Please take off any and all jewelry and do the same. Include your car keys.
4) (To the Court) “Your Honor, I have non-exempt property subject to a writ of execution. I have a writ of execution. I would like to make an ex parte motion to have this property itemized, listed on this Order and taken into custody by the Sheriff pending distribution (if cash) or sale.” Have the bailiff give a copy to the ex and to the Court.

Now you can get property that way, if it’s available to be taken into possession. And you can get documentary evidence of title (if she happens to carry her car registration around). If you’re inclined and she’s still wearing it, you can get her wedding ring back. But read the section again and you’ll see that you can’t get the annuity, unless she happens to be carrying the cash on her and it’s non-exempt.

A) If you can levy on the annuity and it’s not exempt, you don’t need a Turnover Order.

B) If you make a noticed motion, don’t dream of being able to find those assets by the time the motion is heard. If you want to seize assets that aren’t going anywhere for a time (eg. a crop of apples), that’s different. Get your Order and wait for harvest.

C) Order for Appearance for judgment debtor exams must be personally served in CA. If she’s avoiding service, that can be trickier than it sounds. Then, if she is served and fails to appear, you get to pay an additional $50 for a civil warrant that no Sheriff is going to go serve. The warrant is good for 6 months and, if she doesn’t get stopped for a traffic ticket, she’ll skate and you can start again.

When I spoke about “knowing about your ex”, I was serious. Only somebody knowing all the personal information that you know – her SSAN and CDL, where she lives, works, banks, what she drives etc. etc. could help you. Apparently that’s the assignment you’re charged with.

My suggestion would be confirm if the annuity still exists and that it’s non-exempt. Otherwise, it’s time to go to Plan B.

 

[ProPerDoper]

Excellent information....thanks.

So....We're to appear for a hearing in less than 30 days before the Family Law Judge who made the order for the Wage Garnishment. He was none too happy about her concealment of assets at that hearing, based on my read of his body language, and his willingness to grant my motion and request. I didn't have to argue a thing, he based his decision on the pleadings alone. (If I've learned one thing, it's all about evidence)

The hearing is a special set hearing requested by me in opposition of her Claim of Exemption. Keep in mind that the code states that she can make a claim if there has been no previous hearing on the Wage Garnishment. Strike one.

The judge will already have read my argument in a filed declaration in support of my opposition to her claim, that a critical need in our matter is for disengagement of the parties due to the stress the continued battle puts on the minor kids. It's a "best interests" argument, something looked upon with favor by most judges in Family Court.

I acknowledge that my ex doesn't want her wages garnished, and given her argument that she needs all of her income to support the kids, offer up a suggestion that the court may wish to consider which will fulfill the interests of all parties, disengage the two of us sooner, which support the best interests of the kids.

I bring to the court's attention the annuity that she owns, and question her briefly under oath as to whether or not it still exisits. If so, ask the judge to enter a minute order which freezes that account pending the upcoming hearing on the motion and request for turnover order which I will fill immediately after that hearing. That way, she has no time to dispose or transfer the fund, assuming she hasn't already. Then I begin discovery to trace the funds.

To garnish wages for a non-support debt in Family Law, you need a judges order. I suspect that the same may be true in regards to a levy on property in the same way, although I don't know that for sure. If I was to accomplish the above, it would allow the account to be frozen, and provide the path to a judge's order for turnover, subject to contempt charges for non-compliance, which puts to ownes on her to comply.

Keep in mind that she perjured herself by listing the fund as a 401k on two separate occasions in a Schedule of Assets and Debts signed under oath. The fact that I moved the court for Wage Garnishment instead of levy against assets was because she made it appear that she had no assets to levy against. We knew she had transferred everything already. Then I learn that the annuity is "non-qualified." In other words, not a qualified 401k or IRA account, but rather purchased with after-tax dollars.

There is a lot more discretion (power) on the part of the judge in Family Court vs. Civil. I've seen orders made from the bench on things that were not even plead or on calendar. As an example, I cited the incorrect code to support my request for Wage Garnishment within my motion, and the Judge said that he was going to construe my motion to be filed per the correct code.

This court is tired of us, and more specifically tired of her games. I think that I can use that to my advantage. A suggestion for speedy resolution will be looked upon with favor.

Think it'll work?

 

[Chien]

If that’s A or B, actually, I think you’ve designed a viable plan.

I don’t do family law work and won’t even mediate family law matters (my own reasons), but I am aware of the dynamic that you describe and, on the facts posted, I would expect it to work in your favor, as do you.

There are at least two sides to every story but, accepting yours, it should do most, if not all that you intend. Your argument should have appeal.

 

[ProPerDoper]

A gentleman you are, and your comments well received....I thank you.

I intend to run this by Family Law counsel (unbundled services) for another look, but my gut says that even if it requires some modification of plan along the way, it's worth a good try.

 

[ProPerDoper]

Spoke with another attorney this morning, and he suggests having my paperwork on a bank or account Levy completed and ready for the judge to sign at the upcoming hearing, just in case.

I like the idea, but I'd still like to be prepared with the legal authority that provides the court the jurisdiction to make that levy on the fly, at the hearing, with no pleadings or requests for relief on the subject having technically been put on calendar.

Thoughts?

 

[ProPerDoper]

Even better advice came in.....

Obtain and serve her with a restraining order on the account at the hearing. Then file my NOM and application for a Turnover order.

 

[Chien]

Perhaps I lost something. You said you already had a writ of execution. Aside from levy instructions for the Sheriff (which you sign), what “paperwork . . . for the judge to sign” are you contemplating?

I acknowledged that I don’t do family law work, but “requests for relief” are made following a levy because seized assets are exempt, and the status of the annuity was discussed. If you can identify the funds and the court will freeze the account, you seize them, and she needs to prove they’re exempt and should be released.

Ordinarily, I’d have some doubts about a court freezing an account for a regular civil judgment, but a Family Code judgment “may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary” pursuant to FC sect. 290. In the context of your particular situation, such a Order would be less surprising.

I still don’t follow the need for a Turnover Order, when you have a writ but, when you referred to a financial institution in the original post, I understood it to mean that you knew the bank but not the account. CA has both “branch and “branchless” banking. More specific information is required to successfully direct a levy to the former type. If you lack sufficient information to initiate a levy, then I understand.

If you’re going to make a motion, make it ex parte, file it before the hearing and have the bailiff serve her.