Patrick O’Laughlin, Esq.
Collecting from an uncooperative tenant is difficult even when you are as persistent and persuasive as possible. The task becomes even more difficult once the tenant is gone since the tenant’s incentive to remain in the property no longer exists. This is particularly true when the tenant is unconcerned with his or her credit or if his or her credit is already poor. At this point, a former tenant has little incentive to pay at all.
Clients often ask, “If a former tenant won’t pay voluntarily, what can we do?”
This question is answered with a short discussion of the most commonly used judicial enforcement techniques: wage garnishments, the bank levies, and judgment debtor examinations.
But, please be aware. In order to pursue these avenues, it is necessary to obtain a money judgment against your tenant during the eviction case.
Many landlords choose law firms instead of collection agencies since law firms regularly pursue wage garnishments, bank levies, and judgment debtor examinations. Law firms that specialize in collecting unlawful detainer judgments enjoy a huge advantage over collection agencies. Law firms can collect from former tenants who have no intention of cooperating by using the court system to force payment.
Provided that a place of employment can be discovered, a wage garnishment can be the simplest and most direct way to enforce a judgment. In some cases, depending upon a debtor’s financial situation, a wage garnishment may be the only way to collect.
In California, 75% of a defendant’s wages are automatically exempt from garnishment. Therefore, most often, a judgment creditor is entitled to 25% of a defendant’s wages.
In order for a wage garnishment to be effective, the defendant must be an employee and not work as an independent contractor.
The first step in pursuing a wage garnishment is to apply to the court for a writ of execution. There can be only one writ of execution outstanding, per county, for a case at any given time. Once the writ of execution has been issued, the creditor must complete an official form approved by the Judicial Council to apply for the earnings withholding order.
Once the order is issued, the creditor must serve the garnishment papers on the defendant’s employer. It is important to include enough information on the application for earnings withholding order so that the employer can sufficiently identify the defendant. The defendant’s social security number is most effective but date of birth, home address, and other identifying information may be used as well.
A wage garnishment is effective 10 calendar days after service and remains in effect until the judgment is satisfied or until the employee is terminated.
While the process of obtaining and serving the garnishment can be relatively simple, there are three potential obstacles.
First, the employer may not voluntarily comply with the garnishment. Employer non-compliance typically occurs when the employer has a special relationship with the defendant (i.e. a friend or family member.) It is surprising how often an employer will seek to “cover” for the defendant by denying that the defendant is an employee or by paying the defendant “under the table.” In this instance, it may be necessary to file suit against the employer.
Second, the defendant’s wages may already be garnished by another creditor. If a garnishment is served while a prior order is in effect, the garnishment is not effective. Garnishments for unpaid taxes and child or spousal support take priority over other judgments.
Third, the defendant may quit or be terminated.
If the wage garnishment is effective, it is the responsibility of the employer to pay garnished monies to the County Sheriff on a monthly basis or at the close of each pay period.
In order levy a bank account, a writ of execution is required for the county in which the account is located. Creditors can use either the County Sheriff or a registered process server to serve bank levies.
A bank levy can be exceptionally effective since creditors may reach all monies in the account up to the judgment amount with interest. However, a bank levy is often thought of as a “one shot deal” since almost all defendants close their bank accounts once a levy has been served. If there is little or no money in the account at the time of service, the creditor has effectively “tipped the defendant off” and many defendants will quickly try to hide or transfer remaining assets.
Levies must be served at the branch where the account is held or at a centralized location designated by the bank. Most firms that specialize in debt collection have sophisticated techniques for discovering a defendant’s place of banking. Law firms that specialize in debt collection often pursue not only checking and savings accounts but property held in safe deposit boxes as well. To seize property in safe deposit boxes, a special court order is required.
After service of the levy, the bank may not allow an account holder to make withdrawals of the levied funds. In effect, the account monies are “frozen.” Additionally, the financial institution may not honor a check drawn on the levied monies.
Judgment Debtor Examinations
In the event that a creditor does not know where a defendant works or banks, the judgment creditor may apply to the court for an order for appearance of the judgment debtor (commonly referred to as a judgment debtor examination.)
Unlike many other judicial processes, the order must be personally served upon the judgment debtor 10 days prior to the court hearing. If the defendant can be served, the judgment debtor examination is the equivalent of post-judgment discovery. In court and under oath, the defendant must disclose his or her assets.
An interesting nuance of the judgment debtor examination is that, upon service, a “secret lien” is created upon all of the defendant’s nonexempt personal property. The lien is effective for one year. Any property transferred by the debtor within this one year period remains subject to the lien.
If a defendant does not cooperate or comes to court unprepared, the attorney taking the examination may request a continuance in order to obtain additional information. A subpoena can be served requiring a defendant to bring documentation that will assist in collection (pay stubs, bank records, etc.)
If a defendant is properly served and fails to appear, a bench warrant may be issued for the defendant’s arrest. Each court has its own process for handling failure to appear cases. Some courts provide an additional opportunity for the defendant to appear while others issue bench warrants at the time of hearing.
Wage garnishments, bank levies, and judgment debtor examinations are the most effective ways to collect from uncooperative former tenants.
If the company handling your collection work does not do wage garnishments, bank levies, and judgment debtor examinations, you are leaving money on the table.
Any questions regarding this article or the collection process, please contact Patrick O’Laughlin at (800) 575-1770 or firstname.lastname@example.org.
Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. If you have questions, please contact your local KTS office. For contact information, please visit our website: www.kts-law.com. For past Legal Alerts, Questions & Answers, and Legal Articles, please consult the resource section of our website.
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