I am not a lawyer, I am a Judgment and Collections Broker. This article is my opinion, based on my experience in California, and laws vary in each state. If you ever need legal advice or a strategy to use, please contact a lawyer.
This article is one of my series of assignment order articles. This one includes a simple example of a template for an assignment order combined with a civil restraining order.
An assignment order can intercept income streams going to your judgment debtor. It requires a new court hearing, and must be served on all other parties.
One problem can be, as soon as the judgment debtor, or those paying your judgment debtor, are served with an assignment order, one of them might suspend or divert payments, to thwart the creditor.
For this reason, it is sometimes a good idea to include restraining order wordings in assignment orders. At the end of this article is a template for a simple assignment order that includes a civil restraining order.
My articles and templates are in no way a replacement for proper legal advice. Always consult with a lawyer on your first assignment order.
Assignment orders require a lot of paperwork, that must be served. In addition to an order, as discussed in this article, a Memorandum of Points and Authorities, a Motion, a Notice of Motion (or Entry of Order), and Proofs Of Service are also all usually required.
Often, proposed orders are submitted to the court, and the judge may tell you to modify the order, and then resubmit the proposed order to the court clerk later, for the judge's signature.
This is a simple example of an assignment order, with a restraining order I have used:
Your Name (your capacity - assignee of record or judgment creditor)
Your Address
Your City, State, and Zip
Your Email address and Phone Number
SUPERIOR COURT OF THE (YOUR STATE) OF YOUR STATE
COUNTY OF (YOUR COUNTY), YOUR DIVISION (civil, small claims, etc.)
Case # 123456789
Pat Plaintiff
vs.
Dave Defendant
ASSIGNMENT AND RESTRAINING ORDER
Date: June 17, 2010
Time: 1:00 P.M.
Dept: 14
This motion, was brought before this court by Mark D. Shapiro, the assignee of record for this judgment, that was rendered by this court on 07/07/2007.
The assignee of record was heard on June 17, 2010, before Hon. John Justice, Judge Presiding, in Department 14 of the above entitled court.
Judgment Debtor Dave Defendant, having been duly served with notice of this motion, (either appeared, or failed to appear and did not oppose the motion).
The Court, having considered the motion and with good cause appearing:
IT IS ORDERED that assignee of record’s motion be hereby granted as follows:
All payments due, or to become due to Judgment Debtor Dave Defendant from Joe's Garage, are hereby assigned to assignee of record Mark D. Shapiro, to the extent necessary to pay this judgment with accrued interest and costs in full through the date of final payment.
Both Joe's Garage and Judgment Debtor Dave Defendant, and any servant, agent, employee, attorney, and any person(s) in active concert and participating with the Judgment Debtor Dave Defendant or Joe's Garage are hereby restrained from encumbering, assigning, disposing, lending, or spending commission fees, bonuses, regular payments, and all other payments for services performed by Judgment Debtor Dave Defendant, or paid to Dave Defendant from or by Joe's Garage, to the extent necessary to pay assignee of record Mark D. Shapiro to satisfy the judgment herein.
NOTICE IS HEREBY GIVEN THAT FAILURE BY THE JUDGMENT DEBTOR DAVE DEFENDANT OR JOE's GARAGE, TO COMPLY WITH THIS ORDER MAY SUBJECT THEM TO BEING HELD IN CONTEMPT OF COURT.
Dated: __________________
Signed: __________________
Honorable John Justice, Judge of the Superior Court
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http://www.JudgmentBuy.com - where Judgments and debts quickly get recovered by the best - matched for free to your debtor.
Mark D. Shapiro, with the best quality free leads for enforcers, collection agencies, and contingency collection attorneys.
Showing posts with label Assignment Orders. Show all posts
Showing posts with label Assignment Orders. Show all posts
Saturday, December 24, 2011
Tuesday, December 20, 2011
Assignment Orders
I am not a lawyer, I am a Judgment and Collections Broker. This article is my opinion, based on my experience in California, and laws vary in each state. If you ever need legal advice or a strategy to use, please contact a lawyer.
What if your judgment debtor does not have a regular wage job, and gets paid by customers, relatives, renters or tenants, or most anyone else?
An assignment order might be the right (although paperwork intensive) way to try to satisfy your judgment. This article covers assignment orders in California. It is very important to know your state laws, and if and how assignment orders are allowed.
Assignment orders are (noticed motion) court orders that require a new hearing, and must be served on the other parties. Assignment orders may be able to capture most kinds of (current and future) non-wage income streams.
Because assignment orders are lawful alternatives to conventional levies, you do not (in California) need to get a writ of execution. Unlike regular levies, the money often gets turned over directly to you.
In some places, the court may require the sheriff to be the levying officer. If that is the case, you will need to have a registered process server open a sheriff levy file, and then have the assignment order served on the parties, and then file the proofs of service with the sheriff.
Assignment orders can capture most distributions, commissions, and almost any kind of K-1 income. If approved by a court, an assignment order instructs someone that owes money to your judgment debtor, to pay you instead of the judgment debtor.
Assignment orders are most useful when a debtor receives (non-exempt and non-retirement-based) income. Assignment orders may work, even when the debtor claims they are poor, because income is income. (Most truly poor debtors do not have income streams.)
Assignment orders can last as long as it takes to satisfy the judgment. Like most court orders and judgments, nothing is guaranteed. The judgment debtor could file for bankruptcy protection. Other things may happen to thwart any enforcement action or strategy.
In theory, assignment orders for non-exempt income, can ask for all of the income, not just 25% of the income, as most wage levies (garnishments) can reach.
If the judgment is small, or the debtor is rich, ask for 50-100%. If the judge does not think your proposed order is reasonable, compromise and aim for 25%. (Because CCP 708.510-f seems to be very similar to CCP 706.050.)
If the debtor is not rich, it may be smarter to ask for a percentage, instead of all of their income stream. In judgment enforcement, being too aggressive could increase the chance that the judgment debtor will file for bankruptcy protection.
Usually, judges do not rubber-stamp approvals on assignment orders for creditors. When the creditor clearly shows a synopsis of why an assignment order is appropriate, then a judge may approve their proposed order.
You could document why you have no other reasonable way to enforce the judgment. You could also document any prior court-endorsed expenses and attempts that did not satisfy the judgment.
Assignment orders can also be used to reach income originating from other judgments, when your debtor is the creditor. An assignment order can order the debtor of your debtor to pay you instead of them (or the sheriff). Again, consider asking for a percentage.
The first step for any assignment order is learning who is paying your judgment debtor. A debtor exam, could subpoena enough judgment debtor documentation and information, to learn who to serve assignment orders to. Some debtors will pay, when their clients call them, and ask what is going on?
Assignment orders can be general, and not list specific names. They can say "25% of all monies due to the judgment debtor from clients he performs accounting services for". Then, you can serve the assignment order on whoever pays the debtor, including any of their new clients you later discover, after the assignment order is issued.
Another general example would be "The tenant residing at 22 First Street will pay you". That way, if the tenant moves and someone new moves in, you can have the same assignment order served on the new tenant. If the judge will not allow a generic order, you can find out who is renting, one legal way or another.
Sometimes, after being served an assignment order, the third parties still pay the judgment debtor instead of you. Even if they mistakenly pay the judgment debtor, they still owe you that payment.
It is good practice to get certified copies of the assignment order, to quickly serve on parties and/or their lawyers, so they cannot claim they did not believe it to be genuine.
As with any courts hearings - with assignment orders; obeying court rules, state laws, and a substantial paperwork load is required.
Often, 5-6 parts (usually in 5-6 documents) are required. For example, an Assignment Order, (an optional) Restraining Order, a Memorandum of Points and Authorities, a Motion, a Notice of Motion (or Entry of Order), and Proofs Of Service, that are filed with the court.
The Notice of Motion (Entry of Order) and the Motion (Order) are sometimes combined into one document. You need to make several copies of all documents, schedule a hearing date at the court, and have the judgment debtor served everything.
In California, CCP 708.510 specifies the debtor can be served by mail. Bring the proof of service to the court, and appear at the court hearing.
If your order is granted, serve a copy of the order on the judgment debtor by mail, and the parties that will be paying you by mail first. If they do not respond, contact them politely, and if necessary, have them re-served personally.
Please consult with a lawyer when you do your first assignment order.
-------
http://www.JudgmentBuy.com - where Judgments and debts quickly get recovered by the best - matched for free to your debtor.
Mark D. Shapiro, with the best quality free leads for enforcers, collection agencies, and contingency collection attorneys.
What if your judgment debtor does not have a regular wage job, and gets paid by customers, relatives, renters or tenants, or most anyone else?
An assignment order might be the right (although paperwork intensive) way to try to satisfy your judgment. This article covers assignment orders in California. It is very important to know your state laws, and if and how assignment orders are allowed.
Assignment orders are (noticed motion) court orders that require a new hearing, and must be served on the other parties. Assignment orders may be able to capture most kinds of (current and future) non-wage income streams.
Because assignment orders are lawful alternatives to conventional levies, you do not (in California) need to get a writ of execution. Unlike regular levies, the money often gets turned over directly to you.
In some places, the court may require the sheriff to be the levying officer. If that is the case, you will need to have a registered process server open a sheriff levy file, and then have the assignment order served on the parties, and then file the proofs of service with the sheriff.
Assignment orders can capture most distributions, commissions, and almost any kind of K-1 income. If approved by a court, an assignment order instructs someone that owes money to your judgment debtor, to pay you instead of the judgment debtor.
Assignment orders are most useful when a debtor receives (non-exempt and non-retirement-based) income. Assignment orders may work, even when the debtor claims they are poor, because income is income. (Most truly poor debtors do not have income streams.)
Assignment orders can last as long as it takes to satisfy the judgment. Like most court orders and judgments, nothing is guaranteed. The judgment debtor could file for bankruptcy protection. Other things may happen to thwart any enforcement action or strategy.
In theory, assignment orders for non-exempt income, can ask for all of the income, not just 25% of the income, as most wage levies (garnishments) can reach.
If the judgment is small, or the debtor is rich, ask for 50-100%. If the judge does not think your proposed order is reasonable, compromise and aim for 25%. (Because CCP 708.510-f seems to be very similar to CCP 706.050.)
If the debtor is not rich, it may be smarter to ask for a percentage, instead of all of their income stream. In judgment enforcement, being too aggressive could increase the chance that the judgment debtor will file for bankruptcy protection.
Usually, judges do not rubber-stamp approvals on assignment orders for creditors. When the creditor clearly shows a synopsis of why an assignment order is appropriate, then a judge may approve their proposed order.
You could document why you have no other reasonable way to enforce the judgment. You could also document any prior court-endorsed expenses and attempts that did not satisfy the judgment.
Assignment orders can also be used to reach income originating from other judgments, when your debtor is the creditor. An assignment order can order the debtor of your debtor to pay you instead of them (or the sheriff). Again, consider asking for a percentage.
The first step for any assignment order is learning who is paying your judgment debtor. A debtor exam, could subpoena enough judgment debtor documentation and information, to learn who to serve assignment orders to. Some debtors will pay, when their clients call them, and ask what is going on?
Assignment orders can be general, and not list specific names. They can say "25% of all monies due to the judgment debtor from clients he performs accounting services for". Then, you can serve the assignment order on whoever pays the debtor, including any of their new clients you later discover, after the assignment order is issued.
Another general example would be "The tenant residing at 22 First Street will pay you". That way, if the tenant moves and someone new moves in, you can have the same assignment order served on the new tenant. If the judge will not allow a generic order, you can find out who is renting, one legal way or another.
Sometimes, after being served an assignment order, the third parties still pay the judgment debtor instead of you. Even if they mistakenly pay the judgment debtor, they still owe you that payment.
It is good practice to get certified copies of the assignment order, to quickly serve on parties and/or their lawyers, so they cannot claim they did not believe it to be genuine.
As with any courts hearings - with assignment orders; obeying court rules, state laws, and a substantial paperwork load is required.
Often, 5-6 parts (usually in 5-6 documents) are required. For example, an Assignment Order, (an optional) Restraining Order, a Memorandum of Points and Authorities, a Motion, a Notice of Motion (or Entry of Order), and Proofs Of Service, that are filed with the court.
The Notice of Motion (Entry of Order) and the Motion (Order) are sometimes combined into one document. You need to make several copies of all documents, schedule a hearing date at the court, and have the judgment debtor served everything.
In California, CCP 708.510 specifies the debtor can be served by mail. Bring the proof of service to the court, and appear at the court hearing.
If your order is granted, serve a copy of the order on the judgment debtor by mail, and the parties that will be paying you by mail first. If they do not respond, contact them politely, and if necessary, have them re-served personally.
Please consult with a lawyer when you do your first assignment order.
-------
http://www.JudgmentBuy.com - where Judgments and debts quickly get recovered by the best - matched for free to your debtor.
Mark D. Shapiro, with the best quality free leads for enforcers, collection agencies, and contingency collection attorneys.
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