I.3. Azar procesal
I.3.1. Justicia en el proceso penal y error judicial
KEY TERMS:
Judgment Creditor: The party (may be the Plaintiff or the Defendant) in whose favor a judgment has been awarded Judgment Debtor: The party (may be the Plaintiff or the Defendant)
against whom the judgment has been entered
Collecting the Judgment: Overview
Just winning does not mean that the Judgment Debtor will pay o The Court cannot collect the judgment for you
The Judgment Creditor MUST WAIT for 30 days from the date of mailing of the Notice of Entry of Judgment (SC-130 or SC-200) before he/she can start collecting from the Judgment Debtor
After 30 calendar days, the Creditor can start the collecting procedures if the Debtor has NOT paid his/her judgment or filed for an appeal
If the Debtor files an appeal and loses, the judgment becomes enforceable 10 days after the Small Claims Clerk mails the appeals notice
Recovering Post Judgment Costs: Memorandum of Costs (MC-012)
Recovering Post Judgment Costs:
o How to:
1. The Judgment Creditor files a Memorandum of Costs (MC-012) with the Small Claims Clerk to update the judgment to include additional collecting costs and interests
2. In addition, the Creditor MUST send a copy of the Memorandum of Costs (MC-012) to the Judgment Debtor
o If the Creditor request to add additional costs and interest exceeding $100, then the Small Claims Clerk will send the request to the Judge for approval
o The Creditor must file within 2 ½ years of incurring the cost to update the judgment to include that cost
What if the Judgment Debtor Pays the Judgment to the Court
The Court will inform the Judgment Creditor if the Judgment Debtor paid the entire amount to the Court
o For the Creditor to claim the judgment, the Creditor must file the “Judgment Creditor’s Request for Funds” on the Request to Pay Judgment to Court (SC-145) either in person or by mail to the Small Claims Clerk
o IMPORTANT! If you are the Creditor, make sure that the court has your current address at all times. If after 3 years the court cannot contact you, then your money judgment becomes the property of the court.
Debtor’s Exam: Getting More Information from the Judgment Debtor
What it Does:
o In a Debtor’s Exam, the Judgment Debtor is ordered to appear in Court to answer the Judgment Creditor’s questions about the existence and location of his or her salary, bank accounts, property, and anything else that could be used to pay the judgment
Beforehand, the Creditor may file subpoenas [Small Claims Subpoena and Declaration (SC-107)] to get documents and records of the Debtor’s bank books, property deeds, paycheck stubs, and similar documents
How to:
1. To set up a Debtor Exam, file the Application for Order to Produce Statement of Assets and to Appear for Examination (SC-134) at the courthouse where the judgment is held
Important! If the Debtor has provided the Creditor a Judgment Debtor’s Statement of Assets (SC-133), then the Creditor needs to file a different form, the Application and Order for Appearance and Examination (EJ-125), to set up a Debtor’s Exam
2. Serve a copy of the form along with a blank copy of the Judgment Debtor’s Statement of Assets (SC-133) through a Sheriff or Process Server to the Debtor at least 10 calendar days before the trial
Important! Only a Sheriff or Process Server may serve the Debtor’s Exam (SC-134 or EJ-125)
No other person may serve the Debtor’s Exam
The Creditor can require the Debtor to bring specific documents (such as financial statements) by filing and serving the Small Claims Subpoena and Declaration (SC-107)
3. At the trial, it is up to the Creditor to conduct the examination of the Debtor. If the Debtor refuses to cooperate, the Creditor should ask the supervising Judge for assistance.
The Creditor may have the Judge order the Debtor to turn over assets in their possession on the spot with a “Turn Over Order,” such as for the cash in the Debtor’s wallet or the jewelry that is being worn
The following are sample questions you may ask at a Debtor’s Exam
What is your home address?
What type of property you own and where that property is located?
Are you presently employed? If so, by whom and at what address?
You may search online for additional questions to ask at a Debtor’s Exam
For a list of sample questions:
o <http://www.courts.ca.gov/11328.htm>
If the Debtor does not show up to the Debtor’s Exam, then the Creditor may ask the court to issue a Bench Warrant
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Collecting from an Individual
Options for Collecting:
o Levy on Debtor’s wages
o Levy on Debtor’s checking or other bank accounts o Put a Lien on Debtor’s property
For More Information on Collecting
Please refer to: <http://www.courts.ca.gov/11190.htm>
Collecting from an Individual: Wages
What it Does:
o If Judgment Debtor is working, the Judgment Creditor may be able to receive approximately 25% of the Debtor’s wages
What you need:
o You will need information regarding the Debtor’s work place and a judgment against the Debtor
How to:
1. File both the Writ of Execution (EJ-130) and the Memorandum of Costs (MC-012) at the courthouse where you have the judgment. The Court will issue the Writ of Execution.
o NOTE: The Writ of Execution (EJ-130) is good for 180 days
2. Take the Writ of Execution (EJ-130) along with a completed Application for Earnings Withholding Order (WG-001) to the Sheriff or Process Server 3. Pay the Sheriff’s Service Fee or Process Server Fee to execute the order
o The Levying Officer or Process Server will prepare the Earnings
Withholding Order (WG-002) and serve it on the employer along with the Employer’s Return (Wage Garnishment) (WG-005) and the Employee Instructions (Wage Garnishment) (WG-003)
4. The Employer will serve the papers on the employee
o The employee has ten days to file a Claim of Exemption (Wage Garnishment) (WG-006) or the employer will garnish the wages o If a Claim of Exemption is filed and the Creditor thinks the claim of
exemption is unjustified or wants more than is provided in the claim, o Then the Creditor may file a Notice of Opposition to the Claim of
Exemption (WG-009) and the Notice of Hearing on Claim of Exemption (WG-010) with the court to arrange a trial
The Creditor must have someone who is not a party member and is 18 years or older serves the forms on the Debtor (or to the Debtor’s lawyer if he/she is being represented by the lawyer) at least 10 days before trial
Attend the hearing and explain to the Judge why the money from the wage garnishment is not exempt
5. The employer completes the Employer’s Return explaining how much the employee earns and how often they are paid
o This is sent to the Levying Officer, who then forwards it to the Creditor 6. The employer sends the money to the Levying Officer
o The Levying Officer then sends a check to the Creditor o This may take more than 30 days
NOTE: If the employer refuses to comply with the wage garnishment, then the Creditor may inform the employer that he/she is in violation of the CCP § 709.210. If the employer still refuses to comply, then you may file a Small Claims against the employee’s company to recover the amount owed by the Debtor and any additional fees.
Collecting from an Individual: Levy the Judgment Debtor’s Checking or Bank Account
Exceptions to Levying accounts:
o Some funds may be exempt:
Public Benefits, Retirement Plans, Insurance Proceeds, and Financial Aid o Joint Bank accounts can be levied, but the co-owners will have an opportunity to
object
What you need:
o Bank’s name, branch address of the bank, and a judgment with the Judgment Debtor’s name matching the bank account
Important! For some major banks, the account number is not necessary
Important! The Debtor’s name on the judgment and the name on the account MUST match
Ex. If the judgment is against John Smith, then the Creditor can only collect from John Smith’s personal account
How to:
1. Find the bank location and an account number that the Debtor uses
2. File a Writ of Execution (EJ-130) [make 3 copies] and Memorandum of Costs (MC-012) [make 3 copies] with the Small Claims Clerk at the courthouse where the
Judgment was entered
3. Contact the Sheriff’s Office and provide the Levying Officer with the filed Writ of Execution (EJ-130) and the Sheriff Instructions Sheet (L-1176) [local form for County of Orange]
The Sheriff Instructions Sheet (L-1176) must include:
Name and Street address of financial institution
If necessary, account number
Name of account holder
Date when levy should be performed
4. Levying Officer will use the Writ of Execution (EJ-130) and the written instruction to fill out the Notice of Levy (EJ-150) and serve it on the bank
The Debtor has 10 days to oppose the bank levy before the Levying Officer sends the money to the Creditor by filing the Claim of Exemption (EJ-160) 5. Once the Levying Officer collects the proceeds from the levy, he/she will forward
them to the Creditor
Collecting from an Individual: Property Liens
What it Does:
o The Judgment Creditor may put a lien on any land, house, or other building the Judgment Debtor owns
Collecting from Property Liens:
o The Creditor collects from property liens when the Debtor sells or refinances his/her property
How to:
o The Creditor must have a copy of the Notice of Entry of Judgment (130 or SC-200)
o File the Abstract of Judgment (EJ-001) [make 2 copies] and Memorandum of Costs (MC-012) [make 2 copies] at the courthouse where the judgment was entered
o Record the Abstract of Judgment (EJ-001) with Recorder’s Office in each county where the Debtor owns property
Only one Abstract of Judgment (EJ-001) must be recorded in each county even if there are multiple properties
AFTER COLLECTING YOUR JUDGMENT AND YOU USE PROPERTY LIENS:
o You must remove each lien that you used for collecting from the Debtor
To remove a real property lien:
1. you must have the Acknowledgement of Satisfaction of Judgment (EJ-100) notarized and then filed with the court
2. Next, record a certified copy with the County Recorder’s office
To remove a personal property lien:
1. Follow the instruction on the Judgment Lien Change Form (JL-3)
Additional Notes:
o Real Estate liens are valid for 10 years, and can be renewed for another 10 years provided that the judgment is renewed
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Collecting from a Business
Options for Collecting:
o Have a Sheriff perform a “Till Tap”
o Put a “Keeper” in the business
o Levy on Debtor’s checking or other bank accounts
For More Information on Collecting
Please refer to: <http://www.courts.ca.gov/11188.htm>
Collecting from a Business: Till Tap
What it Does:
o If the Judgment Debtor is a business and the business has cash register(s), then the Judgment Creditor can have the Sheriff collect from the cash registers
What You Need:
o Judgment against a business with cash register(s), o The address of the business,
o Memorandum of Costs (MC-012), and o Writ of Execution (EJ-130)
How to:
1. File a Writ of Execution (EJ-130) and Memorandum of Costs (MC-012) with the Small Claims Clerk
2. Take the Writ of Execution (EJ-130) and the Sheriff Instructions Sheet (L-1176) to the Sheriff
3. For the Sheriff Instructions Sheet (L-1176):
Pay the fee
State that you want a Till Tap
Provide a business address and best time to perform the Till Tap
Sign the form
4. Sheriff will perform the Till Tap and report the outcome around a week to the Creditor
If there is not enough money in the register to pay the judgment, the Creditor must pay another fee to have the Sheriff go back out if he/she chooses this option again
Colleting from a Business: Keeper
What it Does:
o If the Judgment Debtor is a business, then for a hourly fee, the Sheriff will remain in the Debtor’s business for up to 8 hours and take all the funds that come in until the judgment is paid
o The “Keeper” collects:
Cash,
Checks, and
Bank credit card drafts
What you need:
o A judgment against a business, o The address of the business,
o Memorandum of Costs (MC-012), and o Writ of Execution (EJ-130)
How to:
1. File a Writ of Execution (EJ-130) and Memorandum of Costs (MC-012) with the Small Claims Clerk
2. Take 3 copies of the Writ of Execution (EJ-130) to the Sheriff and complete the Sheriff Instructions Sheet (L-1176)
3. On the Sheriff Instructions Sheet (L-1176):
Pay the fee
State that you want a “Keeper”
Provide an address and a best time for the “Keeper” to be there
Sign the form
4. The Sheriff will report the outcome around a week to the Creditor
Collecting from a Business: Levy the Judgment Debtor’s Checking or Bank Account
Exceptions to levying accounts:
o Some funds may be exempt:
Public Benefits, Retirement Plans, Insurance Proceeds, and Financial Aid o Joint Bank accounts can be levied, but the co-owners will have an opportunity to
object
What you need:
o Bank’s name, branch address of the bank, and a judgment with the Judgment Debtor’s name matching the bank account
Important! For some major banks, the account number is not necessary
Important! The Debtor’s name on the judgment and the name on the account MUST match
Ex. If the judgment is against John Smith, the Judgment Creditor can ONLY collect from John Smith’s personal account
How to:
1. Find the bank location and an account number that the Debtor uses
2. File a Writ of Execution (EJ-130) [make 3 copies] and Memorandum of Costs (MC-012) [make 3 copies] with the Small Claims Clerk at the courthouse where the
judgment was entered
3. Contact the Sheriff’s Office and provide the Levying Officer with the filed Writ of Execution (EJ-130) and the Sheriff Instructions Sheet (L-1176):
The Sheet must include:
Name and Street address of financial institution
If necessary, account number
Name of account holder
Date when levy should be performed
4. Levying Officer will use the Writ of Execution (EJ-130) and the written instruction to fill out the Notice of Levy (EJ-150) and serve it on bank
5. Once the Levying Officer collects the proceeds from the levy, he will forward them to the Creditor
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