Non Support Debt Collection From Ex Spouse

[ProPerDoper]

Your are correct, I do have a Writ of Execution, and a Court order for Wage Garnishment. As earlier stated, she has now filed a Claim of Exemption re: Wage Garnishment.

I have a statement copy which shows the annuity, but the account number and location where the account is held have been redacted. I think the lack of details prohibit a levy.

I've since learned that the Turnover order is designed to be used in conjunction with a debtors examination. Apparently code says the judge signs the application for turnover order following the debtors examination.

Objective is to seize the funds in the annuity before she can conceal them. If I understand correctly, you suggest an ex parte' motion and application for the levy be prepared, and then served on her by the bailiff at the upcoming hearing on her claim of exemption. That would work great if I had the information which she redacted on her annuity statement.

Lacking the information needed for an effective levy, it seems I need a three-part solution:
1 - Freeze the asset to guard against concealment or transfer if she hasn't done so already
2 - Discovery to obtain necessary account information
2- A judge's order to seize the asset and turn it over to me.

So far, the only method I've learned of to accomplish this is to serve a restraining order on her to freeze the account, then set a hearing for debtor's examination, and then request a turnover order at the conclusion of the examination.

If there's something I don't understand, or there's a better alternative, I'm hoping for further direction.

 

[Chien]

We’ve just taken a couple of giant steps back because, yes, I think that’s what you need, but I had reservations about the viability of parts of the plan. You said you were going to run it past family law counsel, and the earlier post suggested a belief that what I hadn’t seen done in civil court could be accomplished in family law court.

As I originally explained, in my experience a Turnover Order is used in conjunction with an ORAP. If the “better advice” was that its applicability could be extended in family law, I’m in no position to refute that, and FC 290 suggested the possibility. (My initial reaction was to ask why you wanted to move for one at the pending hearing but, if it would serve the purpose implied, then make the motion ex parte.)

If there’s common thinking about the sequence of events (and I know you’re keeping me off-balance), I would forget the TO and get your Order to Appear. Have that served by the bailiff because, as I explained, it can be difficult to effect personal service and that’s your chance.

The next step is terra incognita for me but, ideally, the ORAP would be conducted in family court (check “unbundled services” to see if that’s the way it works). I would hope there would be greater likelihood that she’d appear.

If you can string those two parts together, questions about the annuity are properly within the scope of the exam, a refusal to answer is contempt and a “I don’t remember” can get her ordered back with documentation. I’ve served a production subpoena along with an ORAP.

If you can get the assets frozen (big “if”) and you can get the location disclosed, I personally see no reason for a TO; just levy.

 

[Chien]

With due deference to you, your last post didn’t answer the question previously posed, and that was what paperwork are you contemplating for the judge to sign? Looking back through this thread, I believe that I’m reiterating things that I said 2-3 posts ago, and that’s pointless for you and any subsequent readers with a similar problem and similar goals.

You’re committed and have done homework and, as I said, that’s commendable. In effect, you have “unbundled services” in a family law practitioner and a CA collection attorney, but we’re covering the same ground from changing angles. It seems more conducive to confusion than clarity and a plan.

Despite being a collection attorney, there was a reason that I originally suggested that you should have preference for a family law practitioner with enforcement experience. Pursuant to the State Constitution, one department of the Superior Court has no jurisdiction to interfere with or invalidate a ruling made by another department of the same court. Without an express acknowledgement, your statements about continuing matters in family court implied for me that the court had reserved jurisdiction (there was no other logical explanation for continuing appearances on a correlative civil judgment). So I made a point of saying that it was not *my* forum and sharing information pertinent to your questions. If the forum was willing to freeze assets using restraining orders and exercise jurisdiction over judgment debtor exams, fine.

Turnover Orders are a very effective tool. They are also a very esoteric tool. I don’t believe in the efficacy of ORAPs, so it follows that I’ve actually used TOs infrequently (one debtor had the bad judgment to be a wise-acre and forfeited a $5K gold watch and chain for a $1K credit – trivial but the point was made). My guess is that you’d surprise the hell out of 8 of 10 bench officers asked to sign one. Probably recess to double-check what it was.

If I’ve helped, I don’t think I can be of any further assistance. I don’t know that I’d take the same or a different approach to recovery, and I think that further input is confusing things. I believe that an effective recovery plan depends on knowing the debtor – more than that “she’s crazy”. There are collectors and attorneys here and other input available. I appreciate that you want to do this yourself and perhaps you will. I would still suggest a single knowledgeable attorney or P.I. to help formulate a plan.

 

[ProPerDoper]

Forgive my oversight, but I'm still far too early in this process to have come to any conclusions about what I should be doing at any point in the game. I'm still in the conceptual stages of the game, and need experienced counsel to advise what paperwork I need to have ready. I am hopeful that I may have found counsel who is willing to help further just today. I also spoke with Peter Gilboy today, the author of the book that I found online and referenced earlier. He was very helpful, and I intend to get the book.

I assume that I'd prepare an ex parte application for a restraining order, with a copy of the proposed order attached. Then serve the signed/filed restraining order on my ex at the hearing on for opposition to her Claim of Exemption.

Then I'd obtain a hearing for the Debtor's Examination, and have the TO ready for the judge to sign at the conclusion.

I have to admit that I don't understand some of the content in your last post. Suddenly the dialog turned into legal speak rather than the earlier layman's terminology. If I wasn't clear, the entire matter will go before the same Family Law judge who made the order for Wage Garnishment. All issues in our matter (including enforcement) are heard by the same judge.

The only reason a TO may be more readily accepted by the Family Law judge vs. a Levy is that Garnishment for non-support must be ordered by the judge. I suspect that the judge would much prefer that he order her assets turned over to me, rather then to find out that I took it upon myself to seize them on my own when he has already granted a Wage Garnishment.

Family Law judges like to be in charge. The last thing they want to learn is that one spouse went after the other's assets (even if done in enforcement of an judgment) without his knowledge and approval/order to do so.

A little confusion is not surprising given this format. I'm in uncharted waters flailing about, and the pond is in your backyard, you have a boat, and an oar. I believe that any other forum reader would overlook any confusion that might surface, discard it, and eagerly read on to pick up on anything they might learn.

 

[Chien]

Sorry about the “legal-speak”. I try to avoid it, but you seemed to be well-grounded, and I actually thought we were doing an uncommon amount from the start.

I assume you’re referring to the comments about jurisdiction and deference. In as much “laymanese” as I can muster, I was just pointing out that another civil department can’t usurp family law’s reservation of jurisdiction (continuing power and control) over the case. Highly doubtful that a civil department would issue a restraining order to freeze funds; you feel family court will. I’m not challenging that conviction when I haven’t tried. Better to listen to your family law attorney.

A Claim of Exemption is challenged by an Opposition to Claim. A restraining order traditionally serves a different purpose and it isn’t to challenge or to freeze funds. Better to listen to your family law attorney.

A levy coupled with a wage garnishment is common in “traditional” recovery work but may be anathema in family court. Seek advice from those who have dealt with that issue.

At the risk of redundancy, I might take an entirely different approach to enforcement, but I don’t work in family court. Better to listen to your family law attorney or rely on your own experience.

Simple. Cleared up a couple of things at the start, but I don’t do brain surgery and so don’t give advice about that either. I’ve emphasized from the start that this isn’t my pond, and I don’t feel I have anything further to contribute.

 

[ProPerDoper]

Had I started here, I believe that I would have been much more prepared to begin asking questions on this forum.

http://www.courtinfo.ca.gov/selfhelp/smallclaims/collectmoreways.htm#seizure

I believe that new posters should be referred here first to gain info on the basics. It sure would have helped me to better understand the information I was receiving in reply posts.

Additionally, following a cursory review of the step by step guide for judgment and debt collection by Peter Gilboy, I highly recommend it! (See previous post for link)

 

[Chien]

You’re right. It is a very useful site, particularly if you’re a CA litigant (either claimant or defendant) in Small Claims. I know I refer OPs there all the time. So do members in the Small Claims forum.

There are a number of other self-help pages on that same site covering topics ranging from elder care to guardianships to landlord-tenant issues and much more. Between that site and the site for CA’s Office of Privacy Protection (lots of links to subjects regularly discussed in this forum), CA’s government sites are very proactive, consumer-protective, and informative. (It’s somewhat ironic that it should also be the most all-encompassing in state terms of judgment enforcement remedies.)

OP - Your observations go to prove the generally-ignored wisdom of debtcollector’s signature line – use the search function on the forum. Most questions have been answered many times over.

In addition to the plug for the book, I’m sure the California Judicial Council would be pleased to be told that their efforts are appreciated.

 

[Chien]

I’ll tell you what I still regard as a funny experience (and also why I don’t think the book – a How-to guide for creditors – will see a lot of sales from this forum).

I stumbled on this site and this forum, while doing research on the Net. Specifically, I stumbled onto a posting from a CA creditor frustrated with trying to collect a judgment. I had been a creditors’ rights practitioner for many years. I signed in and answered the questions posted.

Try to imagine the surprise when I then discovered that I was on a forum where 99.9% of the questions concerned what to do about existing or prospective creditor’s claims. It felt a bit like having inadvertently divulged State secrets. I chose to stay awhile and share information from the other side of the fence, as have other recovery professionals who post here. But I don’t think the book will be in high demand.

 

[ProPerDoper]

I just heard back from a PI I contacted to do asset research.

$300 per account, and $800 for the annuity, as "that ones much more difficult."

I also spoke with the Legal Tech's at the Family Law Court. She felt that an ex parte application for a restraining order on the annuity is certainly worth a try.

If I was able to obtain the restraining order, (subject to contempt of court) then I could do all the discovery I needed to without concern for asset concealment by the ex. After that, I agree with your earlier advice (assuming I understood correctly) that a levy should suffice.

You can see that I'm still trying to work out a plan, but $40 and a couple of hours in preparing an ex parte application, a declaration, and a restraining order seems like a good place to start. The worst the judge can say is....."denied."

 

[Chien]

Would be curious to know if it works.

 

[ProPerDoper]

Well.....I submitted the ex parte request for asset restraining order today.

We'll see if it works.

Even if it's denied, it may actually plant a seed with the judge, as on the 17th of September we go before him on my filed opposition to the ex's Claim of Exemption.

I'll have a Turnover order prepared for his signature, and ask him to make and order for Turnover Sua Sponte, and help us to dissengage now.

Wish me luck.

 

[ProPerDoper]

Request for ex parte asset restraint granted!

My ex parte request for a restraining order on her annuity was granted today, with temporary orders for asset restraint pending further order of the court.

The judge set a hearing on the matter with OST for service, on 10/15/07.

Based on my past experiences, I'd say that the outcome looks promising.

 

[Chien]

Congratulations. You put in the effort.

So family law will use a restraining order in that manner. Very interesting. I still don't expect to practice there, but it's useful to know that.

With luck, you've just rounded third and are heading for home.

 

[ProPerDoper]

Congratulations. You put in the effort.

So family law will use a restraining order in that manner. Very interesting. I still don't expect to practice there, but it's useful to know that.

With luck, you've just rounded third and are heading for home.

Thanks for the response.

Hearing on Claim of Exemption went forward to day. Her claim was denied, Judge confirmed order providing for 25% wage garnishment. Additionally, I was able to have her personally served with the OSC and Temp. Restraining Orders by another Pro Per litigant. (He was more than happy to serve her and complete my POS)

Now to create the OAH and serve it on the Sherrif's office.

Moving forward**************

 

[Chien]

You continue to do well. I've read some of your posts in other forums and, strangely, personally think that you've probably learned much by this unfortunate experience.

So another litigant was happy to serve her? Can you sense some of the reasons I don't practice in family court? Do they bite the heads off mates and eat their young too?