CREDITOR DEBTOR LAW
An Overview of Creditor-Debtor Law and
Judgment Enforcement Techniques
CAUTION STATE LAW VARIANCES
Judgment enforcement law is notoriously non-uniform between the various states.
Writ of Execution
The Court issues the judgment, but it is the Sheriff (often referred to as the "levying officer") in whatever county the debtor has assets who has to go and seize the debtor's assets and sell them for the benefit of creditors. So, how does the Sheriff made aware of the judgment and empowered to do this?
The answer is the Writ of Execution, which is an anachronism (like so much in judgment enforcement) surviving from the various Writs that existed in Middle-Age England. Once upon a time, when the Earth was seriously thought to be less round but certainly had a much smaller population, the local county Sheriff pretty much knew both everybody in the County and what assets they had. If a judgment was entered against a denizen of the county, the Court issued a Writ of Execution to the Sheriff thereof, and he trotted out to take possession of enough of the debtor's assets until the judgment had been satisfied. The Writ of Execution was thus then, as it is now, the interface mechanism between the Court and the Sheriff.
But as counties became more densely populated, it became unrealistic to expect the Sheriff to know everybody in the county and their assets, and thus the law developed to where it is now: The creditor locates the debtor's assets, and then sends the Sheriff out to grab them. The Writ of Execution thus subtly changed as well, and it now basically alerts the Sheriff that a creditor has a judgment and that the creditor believes the debtor might have assets in the Sheriff's county. However, to get the Sheriff to go out and seize assets now requires something more, most commonly the Writ of Levy which is aimed at particular assets of the debtor.
Indeed, the primary function of the Writ of Execution today is to put the Sheriff on notice that the creditor has a valid judgment, and the Sheriff may henceforth expect future Writs directed at the debtor's assets. This means that the issuance of the Writ of Execution -- or several Writs of Execution if the debtor is believed to have assets in more than one county, each Writ of Execution being directed to a particular county's Sheriff -- is one of the first steps that a creditor takes towards collection of the judgment. This set is usually accompanied by a request to the Sheriff that the Sheriff open a file and assign a case number so as to receive the fruits of collection.
RECENT ARTICLES BY JAY ADKISSON
2017.05.16 ... No, There Is No Important Public Policy Exception To Recognizing A Sister-State Judgment
2016.8.28 … Registered Agent Sanctioned $234,983 For Helping Ex-Husband Hide Documents Abroad In Sergeeva
2016.7.24 … Sham Mortgage Loan Flops In Pivaroff
2016.7.17 … Wyly's Private Annuities Not Exempt Under Texas Exemption Law Says Bankruptcy Court
2016.6.12 … How Olins' Antique Collection Led Him To Prison For Cheating Civil Creditors
2016.4.30 … 529 Savings Accounts Not Exempt In California Under O'Brien
2016.2.28 … Repatriation Order for Offshore Assets Denied in Lewis
For More Articles click here
MAJOR SECTIONS OF WEBSITE
ABOUT JUDGMENTS - Overview of judgments as they relate to judgment enforcement.
Collecting Default Judgments - Special considerations for default judgments.
Form of Judgment for Collection - Getting the form of judgment right can make collection easier, and getting it wrong more difficult.
Judgments On Appeal - Is a judgment enforceable when it is being appealed? Maybe. Appeal bonds a/k/a supercedeas bonds also discussed.
JUDGMENT ENFORCEMENT DISCOVERY - It's difficult to collect against the debtor's assets unless you find them, and it can be difficult to find them.
Private Investigation - Non-judicial methods of investigating the debtor's assets and affairs, including database searches and the use of private investigators.
Written Discovery - Some states allow for written discovery to be propounded to a debtor, which is a good way to start accumulating information from the debtor, or at least what the debtor claims is his assets.
Debtor Examinations - The traditional way of obtaining information from a debtor, which is to haul them into court, sit them down at a table, and ask questions point-blank about assets and income.
Third-Party Examinations - Means of obtaining discovery from third-parties about the debtor's assets and affairs.
JUDGMENT ENFORCEMENT REMEDIES - The primary methods for taking assets and income away from the debtor.
Judgment Liens and Abstracts of Judgment - Ways of freezing assets so that they cannot be easily transferred away pending execution.
Writ of Execution - This document authorizes the Sheriff to make collections on behalf of the debtor, and some other stuff.
Writ of Garnishment - Used to collect wages and against income streams in some states.
Federal Wage Garnishment Law (FWGL) - 15 U.S.C. sec. 1671 provides nationwide wage exemption.
Writ of Levy - The remedy that allows the Sheriff to grab the asset and auction it off on the courthouse steps.
Charging Orders - The "exclusive" remedy against a debtor/member's interest in a partnership, limited partnership, or limited liability company.
Assignment Orders - An order used to intercept income streams, such as advertising revenues, royalty payments, etc.
Creditor Suits - Actions taken against a third-party who has possession of an asset that is still titled in the name of a debtor, or who has violated some other enforcement process.
Receivers - Often the end-game strategy to take a difficult debtor down, by having the court appoint a neutral with all the powers of the debtor, such as to sell season football tickets, or dissolve corporations.
OTHER JUDGMENT ENFORCEMENT THEORIES - While technically not "remedies", these bodies of law are often used in judgment enforcement proceedings.
Alter Ego and Veil Piercing - Cutting through corporations, trusts, and LLCs which are simply the debtor himself in another form.
Voidable Transactions (was Fraudulent Transfer and Fraudulent Conveyances) - Used where title has been transferred to a third-party.
OPINIONS -- Interesting opinions in creditor-debtor law.
Kyne v. Eustice, 215 Cal.App.2d 627, 30 Cal.Rptr. 391 (1963).
In re Foster, 556 B.R. 233 (Bk.E.D.Va., 2016).
Church Joint Venture, L.P. v. Blasingame, 2020 WL 284527 (6th Cir., Jan. 21, 2020).
LAGNIAPPE - A potpourri of stuff.
OTHER INFORMATIONAL WEBSITES
BY JAY ADKISSON
Contact Jay Adkisson:
Phone: 702-953-9617 Fax: 877-698-0678 jay [at] jayad.com
Unless a dire emergency, please send me an e-mail first in lieu of calling to set up a telephone appointment for a date an time certain.
Las Vegas Office: 6671 S. Las Vegas Blvd., Suite 210, Las Vegas, NV 89119, Ph: 702-953-9617, Fax: 877-698-0678. By appointment only.
Newport Beach Office: 100 Bayview Circle, Suite 210, Newport Beach, California 92660. Ph: 949-200-7773, Fax: 877-698-0678. By appointment only.
Admitted to practice law in Arizona, California, Nevada, Oklahoma and Texas
© 2020 by Jay D. Adkisson. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. This site https://creditordebtor.com Contact Jay Adkisson by phone to 702-953-9617, by fax to 877-698-0678, or by e-mail to jay [at] creditordebtor.com