- HOMEOWNERS’ RIGHTS
- LANDLORD & TENANT
One of the biggest risks of litigation is that, even if you prevail at trial, you won’t be able to collect the judgment.
Before you decide to allocate valuable resources (time & money) to a lawsuit, you should assess what the chances are that you will be able to collect if you win.
Often times, the defendant has money, but finding it is next-to impossible. This is particularly true in cases involving small corporations and limited liability companies.
Before initiating litigation, you should determine what assets the defendant has or, more importantly, what assets you are likely to find when and if you win the case.
After you get a money judgment against someone else, you can enforce that judgment.
If you win your case, you can get a judgment lien on the other person’s property. Then you can “foreclose” on that lien. This means that you force the other person to sell the property and pay you with that money. Often, the county Sheriff or a registered process server must “levy” the property after you obtain a “writ of attachment.”
Once you have the judgment, you are the “judgment creditor” and the person you got the judgment against is the “judgment debtor.” You can record an “abstract of judgment” in any county where the judgment debtor has property and your judgment automatically becomes a lien (like a mortgage) against all of the real property in the county that the judgment debtor owns or has an interest in. The judgment expires after ten (10) years and must then be renewed.
You can also get a wage garnishment against the person who lost. This means that money will be taken out of every paycheck until you are paid in full.
If you know where the judgment debtor banks, you can get the Sheriff to levy against their bank account.
There are a also a variety of other enforcement mechanisms, such as seizing business property, appointing a receiver or agent to run the business, and levy and sale of specific items of property.
An Order of Examination, or OEX, is a court order that lets the person who wins find the property that the person who lost owns. CCP section 708.110
The judgment debtor has to go answer questions in Court, or to a Court-appointed referee, about all of their assets – any ownership interest in any real or personal, tangible or intangible property is fair game.
The Order of Examination establishes a lien on the judgment debtor’s property for one year. The court can always terminate the lien earlier. The judgment debtor must get notice of the OEX at least ten (10) days prior to the examination.
If you lost a judgment, the judgment creditor cannot take or “garnish” the part of your paycheck necessary to support you and your dependents.
See CCP section 706.051 for more information. You have to file a Judicial Council claim form to get a claim of exemption.
See CCP section 706.123 for a list of what you need to put in a claim of exemption.