I Won! Now How Do I Get Paid?


Simon Offord

by Simon Offord on June 27, 2011

in Litigation

Introduction

Many times, obtaining a judgment does not guarantee you will be paid.  Unfortunately, judgment creditors cannot simply rely on the debtor to write a check for the judgment, but instead creditors have to be proactive in collecting their debts.  Luckily, California law prescribes several specific avenues of collection.  This article will look at one of those many avenues: levying a bank account.

Procedure to Levy Bank Accounts

There are several required steps to levy a bank account in California.  Although these steps have slight variations by County, the following is a general overview of the required action.

Obtain a Writ of Execution

The first step in the levy process is to obtain a writ of execution.  The California Judicial Council has approved for optional use an official form Writ of Execution which needs to be prepared and filed with the Court.  The clerk “issues” the writ by signing and dating the completed writ form and affixing the court’s seal thereto.  A separate writ of execution must be issued for each county in which a levy is to be made.

Deliver Writ of Execution

The next step is to deliver to the levying officer the original writ (and required copies), written instructions and the required fee.  The “levying officer” is the sheriff or marshal of the county to which the writ is directed (CCP § 680.260). Exactly who performs this function differs from county to county.

Although they are not “levying officers,” registered process servers may initiate many types of levies, including bank levies.  In fact, many counties require process servers to initiate the levy process.  However, the levying officer’s fee must still be paid (in addition to process server fees); and the levying officer must return the writ to court.

Levy Instructions and Notice of Levy

The levying officer is required to levy the writ as instructed by the judgment creditor, provided the instructions are in writing, signed by the attorney of record, and contain the information “needed or requested by the levying officer” to make a valid levy. [CCP § 687.010(a)]

The instructions may be in the form of a letter. However, many levying officers have preprinted instruction forms; if so, they should generally be used.  This information can commonly be found on the County’s website.  The judgment creditor can list as many banks to be levied upon as they want, however a fee will be required for levy on each bank.  The judgment creditor must deposit with the levying officer amounts sufficient to cover the costs of carrying out the instructions.

The creditor must also provide the levying officer with Notices of Levy for bank.  The Notice of Levy must describe the property to be levied upon.  It is advisable to language similar to the following:

“All personal property in which the judgment debtor has any interest, including the community property of … (name), the spouse of the judgment debtor, in the possession, custody or control of … branch of … (name of financial institution), including, but not limited to, deposit accounts No…. , contents of safe deposit box … and pledged securities or notes.”

Many people assume that in order to successfully levy on the debtor’s bank account, you must have detailed information about their account, however this is not the case.  There is some variance between banks as to the information required in the levy and whether they will turn over property held in accounts in a different branch of the same bank.

Some banks will allow a creditor to levy the debtor’s assets regardless of which branch the levy is served on.  Other banks require that the levy be served on the specific branch that the debtor opened the account at.  This is driven by internal policies at the different banks.  It is advisable to call the different banks before levying to attempt to figure out each bank’s particular policies.

Levy on Banks

Upon receiving the instructions, the levying officer is to personally serve on each of the banks a copy of the Writ of Execution and Notice of Levy.

Upon being served with the Notice of Levy and Writ of Attachment, the bank is required to turn over any property in its possession to the levying officer.

Service on Judgment Debtor

Promptly after a levy is made, the levying officer (or registered process server) must serve on the judgment debtor the following:

• Copy of the Writ of Execution;

• Copy of the Notice of Levy;

• If the judgment debtor is a natural person, a copy of Judicial Council form EJ-155, listing the state and federal exemptions that may be available to the debtor, and the published list of CCP § 703.140(b) exemption dollar amounts; and

• Any affidavit of identity for names of the debtor listed on the writ of execution. [CCP § 700.010]

It is important to make sure the process server understands and complies with these requirements.

Other Potential Issues

Once the levy process has been completed, there are certain other steps that must be taken by the levying officer or process server.  These steps may differ based on which county you are in and who served the levy.

The judgment debtor may attempt to oppose the levy based on exemption grounds.  For instance, the debtor may oppose the levy of retirement funds.  If such an opposition is made, a court hearing is required to determine whether the levying officer is allowed to release the funds to the creditor.

Conclusion

At the Law Offices of Peter N. Brewer, our aggressive team has had significant success in levying judgment debtor’s bank accounts.  In one recent situation, we served approximately 30 banks in the neighborhood where the judgment debtor lived and worked, and were able to recover approximately $40,000 in cash for our client.  This aggressive and fruitful levy led to the judgment debtor agreeing to make monthly payments to our client in order to satisfy the remainder of the judgment.  As of the date of writing this article, the judgment debtor continues to make monthly payments to our client.

If you have questions regarding levying on a judgment debtor’s bank account, or collecting judgment generally, the Law Offices of Peter N. Brewer would be happy to help.  We can be reached at (650) 327-2900, or on the web at www.BrewerFirm.com.

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