A “Notice of Garnishment” procedure can be used for final monetary judgments and also for cases where a judgment (or settlement) has not yet been reached.
One of many trial articles: I am a trial broker, not an attorney, and this article is my opinion based on my experience in California; consult an attorney if you need legal advice.
If you don’t have a judgment yet, or are not going to try to repossess the debtor’s property soon, a “Notice of Garnishment” procedure is probably the best way to start. What to do next depends in part on whether there is any opposition filed by a relevant party. A garnishment notice is generally defensible, even if it is not the most direct way to receive payment.
To challenge your notice of garnishment requires a served motion, not just a judgment debtor choice, see CCP (Code of Civil Procedure) 701.520 (c) and (d):
CPC 701.520 (c): Within 10 days after notification of the intended sale, the judgment debtor may petition the court for an order to collect the property instead of selling it by served motion. An applicable judgment debtor shall, within the time allowed for the request, deliver a copy of the motion notice to the judgment creditor and submit a copy of the motion notice to the garnishment officer. The delivery of the copy of the notice of motion to the creditor of the judgment will be made in person or by mail. If the copy of the notice of motion is not presented to the lien officer within the allotted time, the lien officer will proceed to sell the property. If a copy of the notice of motion is presented to the lien officer within the allotted time, the lien officer will continue to collect the property until the court orders otherwise.
CPC 701.520 (d): At the hearing on the motion, the court may, at its discretion, order that the property be sold or collected depending on the equity and circumstances of the particular case.
If the court orders the debtor’s property to be sold, your order may specify the terms and conditions of the sale. If the court orders the property to be collected; the court may condition its order to an assignment of assets belonging to the judgment debtor to the judgment creditor in accordance with CPC 708.510-708.560.
CPC 708.410 (d) clearly describes when a Notice of Lien can be filed on a Pending Action. Of course, after the judgment is final; a fee usually offers the best chance of being paid. CPC 700.190 clarifies the distinction of a final monetary judgment. These two sections of the CCP, by their language, seem mutually exclusive.
There is a theory that the judgment debtor can object to your lien, and somehow the bailiff should collect the judgment, rather than sell it at a foreclosure auction. However, this is just a theory.
The reason this is a theory is that in order to collect the judgment, the debtor would need to give the bailiff enough information to allow him to collect the judgment, such as banking information, etc.
The bailiff cannot force the judgment debtor to pay on demand. Generally, one is only in a position to issue or demand an acknowledgment of satisfaction if one has properly obtained the rights to the judgment in accordance with state law.
CPC 701.520 shows how a judgment is sold. It is unlikely that a debtor:
1) Take the steps first to oppose the bailiff’s auction, and
2) Prevail in the audience over your noticed movement.
I have never seen or heard of such a motion being made. It could happen because it is authorized by law. This is not a reason to cancel the recovery process and never consider a lien on your debtor’s money or property judgment.
In opposition to any motion of the debtor, the creditor could argue that without a showing by the debtor of the judgment, and that there is some probability of collection through the lien officer, the motion should be denied.
Therefore, there is a potential problem with a tax with an auction. If the judgment debtor simply objects to the sale (not even court proceeding), then the sheriff should collect the judgment, not sell it.
What are the probabilities that the bailiff, faced with such an objection, will make an effort to collect the sentence between now and a hundred years from now?
If the judgment debtor chooses to have the bailiff collect the judgment, that is the end of any effort the judgment owner or assignee could make to enforce it.
The creditor receives the funds collected by the bailiff, however, if the bailiff does not collect anything, that is what the creditor receives.
It is best to ask the bailiff to sell the judgment or property, if you think the judgment debtor will not care. Some court debtors hire attorneys to challenge creditors.
What done is done. There is nothing in statute or case law to suggest that an unopposed “Notice of Lien” is ineffective regardless of when it is filed. Is it the best way to do business? Probably not, but it is not prohibited. What is not prohibited is allowed. (At least, until a judge says it’s not allowed.)