Articles & News
Tips: enforcing judgments by levy
Los Angeles Daily Journal
May 9, 2012
"I'm from the sheriff's department and I'm here to levy on your car," declares the sheriff. The debtor, of course replies "Thanks, but no thanks." What now?
The question is multiple-choice. Either (a) the Sheriff has to leave, or (b) the Sheriff can take whatever means are necessary to levy on the automobile. The answer is - a typical lawyer answer - "it depends."
"If the sheriff comes back with a private place order, there is an almost 100 percent chance that the vehicle will not be anywhere near where it was previously located."
Now let's have a flashback to the attorney's office where the client comes in and says "my former spouse owes me lots of money and he has a brand new Bentley convertible that he bought for cash, it's not leased." The attorney tells the client "I already got a Writ of Execution pursuant to Code of Civil Procedure Section 699.510 for the property division money he owes you." The writ is in your file just in case we came up with something that we could levy on to satisfy this property settlement your ex owes you." Now that you have told me there is something we can go after, I will begin enforcement by levying on his new car. I will need to determine exactly where the car is located, the license number, and VIN priory to drafting Sheriff's Instruction. I will send instructions to the Sheriff along with a deposit of $975, required by the Sheriff. The Sheriff will pick up the car, have it sold, and you will get paid the money that is owed you."
What's wrong with this picture? It is an over simplification. First, you apply to the court ex-parte, without notice, for private place order pursuant to Code of Civil Procedure Section 699.030(b). The odds are that if the Sheriff gets to the debtor's location and asks the debtor to have access to the garage or wherever the automobile is being stored, the debtor will say "no thanks," and the Sheriff will leave. An application o the court for a private place order will require you to include in the application the vehicle make, model, license number and VIN according to the creditor's information and belief. The court will not issue the order unless the judgment creditor can in effect establish probable cause to believe the motor vehicle is located in the place described. if the sheriff has a private place order along with the writ of execution, the sheriff will not leave empty handed. The sheriff may break open the building garage where the Bentley is located a manner the sheriff believes will cause the least damage.
However, if the sheriff reasonably believes that the entry and seizure will substantially risk death or bodily harm to anyone, the sheriff may not enter. T he sheriff will notify the court setting forth of the risk and the reasons for believing such risk exists. It will then be up to the court to make appropriate further orders.
Once the vehicle has been levied on, the sheriff will set a public sale for the vehicle. Pursuant to Code of Civil Procedure Section 704.010 the debtor/owner of the vehicle will receive the first $2,300 from the sale of the vehicle. After payment of any liens against the motor vehicle, the rest of the proceeds go to the creditor.
The answer to the first question in this article was "it depends." Why get a private place order? the answer to this question is definite. Namely, if you don't have a private place order, the debtor may send away the serif. If the sheriff comeback with a private place order, there is an almost 100 percent chance hat the vehicle will not be anywhere near where it was previously located.
The procedure set forth above may also be used for other personal property, such as boats, antiques or fine art. Before you begin a levy and sell procedure, you will need to check with the sheriff as to the amount of deposit they will require and the costs of storage and insurance. The sheriff may have to call you back as they have contacts with various third parties for different categories of time. Some of the items you may want to levy and sell are not done very often, ad therefore the sheriff may not immediately know how much of a deposit is needed.
If the procedure or a levy and sell of a motor vehicle is folioed, it may be an effective way for enforcement of the judgment.
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