When There Is No Costs On A MC-12
By: Mark D. Shapiro | Posted: 31st October 2014
A popular way to try to enforce a money judgment is having the Marshall or Sheriff levy/garnish your judgment debtor's bank account. This article covers California, but the concept here will probably be similar in most states.
This article is my opinion and is not, a legal opinion. I'm the judgment broker, and not an attorney. If you ever need legal advice or a strategy to use, you should retain a lawyer. For a bank levy to be successful, three things are required:
1) That your debtor has some money in a bank. If there is little or no money in the debtor's account, paying for a garnishment is most often money lost.
2) Performance and cooperation from your Sheriff, court, and in some counties, a registered process server. All of them have paperwork to complete and require payment.
3) Surprise. If your debtor discovers the scheduled levy, they will likely move their money. One must pay attention to the laws of their state, to help avoid alerting their judgment debtor.
In California, if a judgment owner wants their judgment debtor's bank account to be garnished, they usually must begin by buying a writ, and this is permission in writing from the court to have a Sheriff attempt to garnish their debtor's assets in a particular county.
In California, before you get a writ of execution from the court, usually one must provide their completed MC-12 (Memorandum Of Costs) Judicial Council form. If you do not need to add accrued interest on the writ, you do not need the MC-12 Judicial Council form. The MC-12 form is where the creditor claims the interest accrued, and any costs which should be added to the amount of the judgment debt.
To avoid alerting your judgment debtor to an upcoming bank levy, one shouldn't put costs on a MC-12 Judicial Council form. That's as if any costs get added, your judgment debtor must be served their copy of your MC-12 Judicial Council form by mail, providing the debtor a chance to move or hide the money.
The majority of bank garnishments don't fully pay off judgments. After the bank garnishment completes, the judgment owner is free to fill out another MC-12 form an then note what might have been recovered to list a credit, accrued interest, and all legitimate costs (within two years of those costs being incurred); as the element of surprise will no longer be a factor.
In California, you may claim as much as $99.99 on your MC-12 form be able to get a writ with no waiting period. If your costs are above $100, a judgment owner must wait fifteen after their MC-12 gets served on your judgment debtor, before the court will issue a writ, as defined in Code of Civil Procedure 685.070.
With costs $100 or more, if your proof of service (POS) using first-class mail on the second/back page of the MC-12 is completed and has been signed by a third-party, that means the debtor was notified. After that, the judgment debtor has a chance to file a Motion to Tax Costs (contest your expenses); as long as the debtor has kept their address updated with their.
The majority of judgment debtors don't keep addresses up to date with the court. When you have costs under one hundred dollars, if your POS envelope first-class mailed to the debtor's previous last-known address bounces, having the post office's "unable to forward" stamp because there is not any forwarding order with the post office; that is most likely not your concern.
It is a good idea to keep that bounce-stamped envelope just in case anyone ever questions you about it later. When the claimed costs are big, especially when compared with the amount owed on your judgment; think about discovering your judgment debtor's correct address and have your proof of service accomplished for sure, which in some cases, might mean even using personal service. Also, waiting 6 months after personally serving their court-related document on your judgment debtor may fix up a weak proof of service on a judgment by default.
If there's no costs listed on your MC-12 Judicial Council form, the MC-12 doesn't need to be served onto your judgment debtor. On the back/second side of the MC-12 Judicial Council form, I type "(No proof of service needed - No costs, interest only - See CCP 685.070)" in the "My Address" area near the top of the page, and date and sign near the bottom of the page.
Certain court clerks don't fully know the law when it comes to interest-only MC-12 form circumstances, and may demand a proof of service being completed; even when there's no new costs being claimed. This problem can usually be fixed by requesting a supervisor, and explaining the circumstance, to the court clerk supervisor.
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Mark D. Shapiro of: http://www.JudgmentBuy.com - The easiest and fastest free way to find the right expert to recover or buy your judgment.This article is free for republishing
Printed From: http://www.goinglegal.com/when-there-is-no-costs-on-a-mc12-2437385.html
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Tags: surprise, mail, legal advice, cooperation, paperwork, lawyer, assets, creditor, levy, judgment debtor, process server