Articles & News
Ask Abby & Ira Questions Relating to Enforcement of Court Orders & Judgments
Family Law News
Issue 1, 2011 - Vol. 33 No. 1
This is the first of what is intended as regular column. It will be short on citations, but long on nuts and bolts, how-to information.
Q: I just got a great support order and attorney fee order and I'm sure I'll be getting paid and my client will be getting paid. I guess I should just bask in the glow of a job well done and do nothing, right?
A: Wrong, although there may be compliance initially, you should take the necessary steps to protect your client and yourself. The last thing you want is for your client to come to you and say, my ex-spouse just sold some real estate and I am owed all that money for support that was in the great support order you got for me.
There is something simple and fast that should be done and if you don't do it may be considered negligent on your part. You should obtain an Abstract of Support Judgment from the Clerk of the Court pursuant to Family Code section 4506. But do not stop there. Record that Abstract in all counties the Judgment Debtor owns real property. You can have an Abstract of Support issues for pendent lite orders was well as those orders contained in the Judgments.
Q: I know what to do about protecting my client for support obligations, but how can I protect my client from money due for other then support?
A: It is similar to the procedures used with an Abstract of Support Judgment. Except where one is owed for other then support, have the Clerk of the Court issue an Abstract of Judgment, pursuant to Code of Civil Procedure section 674. Again, record it in any county where the Judgment Debtor owns real property.
Q: My client is owned money for support. I know the Judgment Debtor has a very expensive car. So all I have to do is send the Sheriff out to pick up the car and sell it, right?
A: Wrong. Before you get ready to tell your cline the money is as good as in the bank, there are a few things to consider. If the car is leased, forget about it. It is doubtful the car will fetch more at the end of the lease then the buyout price. You need to keep a few practical things in mind. Code of Civil Procedure Article 6 stein 710.510 et seq Sale and Collection provides that the Judgment Debtor gets the first $1,800 from the sale of the car. This coupled with the fact that the Sheriff in Los Angeles (I'm sure other counties have the same or similar deposits) require a $1,000 deposit before they will levy and sell the automobile. Code of Civil Procedure section 703.150 details exemptions, while Code of Civil Procedure section 704.010 is specific as to a motor vehicle.
More importantly, you need to obtain ex-parte without notice and Order to Seize Property in a Private Place, Code of Civil Procedure section 699.030. Sending the Sheriff out with a Writ of Execution and instructions to levy and sell the car might work i the car is in plain sight. If the car is not in plain sight, the Sheriff may requires that the Debtor to turn over the car to the Sheriff. The Debtor will say "thanks but no thanks." The Sheriff will leave empty handed. At this point if you go back and obtain a private place order there is almost 100% chance the car will not be around the second time the Sheriff shoes up.
The Sheriff will ask the Judgment Debtors to voluntarily allow them to pick up the car. If the Judgment Debtor refuses, the Sheriff armed with a private place order can go into where the car is stored and take it.
The Sheriff, after following the proper procedure, will conduct an auction to sell the car.
A further piece of advice, the people who come to the public auctions know the true value of a car. You will not get a lot for the car. If it is a collectible car with a lot of money you may want to consider having a receiver appointed for the sale of the car. Receivers will be the subject of other questions and answers.
Q: I just levied on a bank account and got back from the Sheriff the Garnishees Return which said "Unable to Located Any Accounts." I guess there were no accounts right?
A: Typical lawyer answer, yes and no. It may be that there really were no accounts, or whoever filled out the form took the path of least resistance and didn't really do much checking. You need to supply as much information as you have on your Sheriff's instructions, like the last four digits of the Social Security number and/or accounts numbers(s).
If you still suspect there are accounts, here is a procedure that may give you the answers. Have the Court issue a Third Party Order for Appearance of Judgment Debtor Code of Civil Procedure section 708.120 directed to the Custodian of Records for the bank. The name of the Custodian must be inserted into the order. You can not use the generic Custodian of Records. This will be discussed in another question and answer.
Once the Third Party Order is issued, serve it along with a Subpoena Duces Tecum on the bank. In a matter in our office, the bank produced records and low and behold not only was there an account but there was money in the account on the date the bank was served by the Sheriff. After being ignored with a few letters, we finally got to someone in the bank's legal department and they had to send us the amount that was in the account on the date the Sheriff served the bank.
Q: My client is owed money from a judgment/order but the ex-spouse is very clever. He has all bank accounts which normally would be in his name in the name of his new spouse. I guess I'm out of luck as to bank accounts?
A: At first glance, that may be what you were thinking but there is good news. Take a look at Code of Civil Procedure section 700.160, subdivision (b)(2). First of all, you will need to prepare a declaration to have the levying officer (the Sheriff) levy on the new spouse's bank accounts. After you prepare the declaration, prepare Sheriff's instructions and send them with the Writ of Execution. Try and include the new spouse's last four digits of the Social Security number if you have it and also include account numbers. The more information you put on the bank levy, the easier it will be for the bank to locate the account. That way the Garnishees Return won't come back with "No Account Located."
Q: My client is owed money from a judgment/order (sounds familiar) but eh ex-spouse's bank accounts are in the name of a dba. Is there anything I can do to get my hands on this money?
A: This is sort of like the situation where the accounts are in the name of the new spouse. You will need to prepare a declaration pursuance to Code of Civil Procedure section 700.160, subdivision (b)(3). The procedure then is the same as for a new spouse bank account.
Q: Can I levy on Social Security for money owed my client?
A: It will depend on the basis for the money owed. If it is for anything other than child and spouse support the answer is no. If the money owed your client is for child and spousal support you can reach up to 50% of party/debtors Social Security.
The procedure you use will depend on whether your just looking to collect current child and/or spousal support or also trying to collect child and/or spousal arrearages.
If you are looking to only collect current child support and/or spousal support, you just need to fill out the Income Withholding Order for Support and include the language to the Sheriff's Instruction.
If you are looking to collect child and/or spousal support arrearages some courts will issue the Income Withholding Order for Support which includes arrearages with just a declaration from the client/judgment creditor as to the amount owed as of a given date. Some court's have required a noticed motion for a Income Withholding Order for Support that includes support arrearages. Obviously, if the Income Withholding Order for Support can be issued without a noticed Motion, so much the better.
Social Security may require a certified copy of both the Judgment and the Order. After the court issues the Income Withholding Order for Support, obtain a certified copy of the Order and a certified copy of the Judgment and have both served on the local Social Security office. This may be the end of your work or just the beginning. In some cases the hardest part of your job is following up with Social Security to get the Order put in effect. sometimes this goes effortlessly and sometimes the Order goes into the black hole, then you need to be persistent and keep following up with Social Security. Once the Income Withholding for Support is in place, it will continue until the support order has been fully complied with current and/or arrearages. After the Income Withholding Order for Support is in place, your client can even arrange for direct deposit into their bank account, eliminating the check getting lost in the mail.
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