IF SOMEONE WHO OWES YOU MONEY DIES (Part 1 of 3)

Collecting from the Dead

If someone who owes you money dies, what should you do? I know it sounds morbid and I hope it’s not in poor taste but that could be a serious problem. Your next step depends on what you have done so far to collect. In the first of this three part series, we discuss what should be done if you have not yet sued on the debt or obtained a judgment.  (We will then cover what happens if there is a lawsuit pending and what happens if you have a judgment). You will need to demand payment against the dead person (decedent’s) estate. However, there are two very important deadlines. The first deadline occurs after the decedent’s heirs or beneficiaries file… [Read More]

CAN A CHARGING ORDER GET ME PAID FROM AN LLC?

Charging Order?

Clients ask us whether a charging order can help them collect on a debt from a debtor’s LLC.  The answer is: sometimes. When starting a business, people form limited liability companies (“LLC’s”) to protect their personal assets from their business debts.  What happens, however, if there is personal debt?  Can the creditor on the personal debt recover assets or money from an  LLC in which the debtor owns an interest? In California, creditors of an individual cannot take away the money or property of an LLC to pay off the individual’s debts.  However, a creditor can obtain a charging order. A charging order requires the LLC to pay any money due to the LLC member debtor directly to the creditor. … [Read More]

CAN A WRIT OF EXECUTION HELP ME GET PAID?

Cowboy stands at the blackboard

We have been asked whether a writ of execution can help a client get paid.   The short answer is, yes, a writ of execution can help you get paid sometimes.   This article talks about what a writ of execution is, when you can get it and how, sometimes, it can help you get paid. What is a Writ of Execution? A writ of execution is an order in a civil case.  It is made after a money judgment has been obtained against a defendant.   A writ of execution orders the sheriff of a county to take property owned by the defendant (or the judgment debtor).   The property can then be turned over to the plaintiff or, in some cases, sold.  … [Read More]

CRIMINAL RESTITUTION AND CIVIL JUDGMENTS: WHAT YOU NEED TO KNOW

Collecting Restitution

  Criminal Restitution: What It Is In California, if you are a victim of a crime and you suffer an economic loss, you are entitled to recover for that loss.   (Penal Code section 1202.4.)   “Economic losses”  means a financial loss.   It includes such things as medical expenses, counseling expenses, property damage or other losses.  This could include money lost when someone defrauds you or maybe when an employee steals from you.   The person convicted of the crime — the offender — is responsible for paying the victim.   If the crime is committed by a juvenile,  a parent or guardian may also be liable.  Criminal restitution is a permanent order.  It does not expire.  It cannot be discharged through bankruptcy. … [Read More]

CAN YOU GET A PREJUDGMENT WRIT OF ATTACHMENT IN ARBITRATION?

Attachment Availalbe?

A prejudgment writ of attachment can help you collect on a breach of contract claim.    Normally, that means that you have a lawsuit pending in a California court.    What if, instead of having a lawsuit pending in a California court, you have an arbitration pending before a private arbitrator?   Can you still get a prejudgment writ of attachment then? Maybe. First,  you probably can’t get the arbitrator to grant the prejudgment writ of attachment.    So, you have to go to the Superior Court of California in the district in which your arbitration is pending. Second, you can go to the court under the statute California Code of Civil Procedure section 1281.8.   Under section 1281.8, even if you are required to… [Read More]

CAN YOU SUE A SUSPENDED CORPORATION?

A suspended corporation is a corporation that the California Secretary of State has put on suspended status.   Typically, that means that they have not complied  with one of their obligations under state law, such as filing their annual taxes.  We’ve talked about what happens when your corporation is suspended.  What happens if you learn that a corporation that you intend to sue is a suspended corporation?   Can you sue a suspended corporation? You Can Sue a Suspended Corporation Yes, you can sue a suspended corporation.   Although a suspended corporation does not have a right to sue or defend itself while it is suspended (Cal. Rev. & Tax. Code, section 23301)  that does not mean that it can’t be sued.   The… [Read More]

NEW YEAR’S RESOLUTIONS TO HELP YOU GET PAID

New Year's Resolutions to Help You Get Paid

Many of us take the opportunity of the new year to make personal health resolutions ranging from losing weight, exercising more to quitting smoking. If you’re serious about improving the financial health of your business, you may want to think about the following new year’s resolutions. They’re designed to make sure that you get paid by your customers: 1. Get your agreements in writing. While many prefer the informality of handshake and oral agreements, the problem with non-written agreements is making sure that everyone agrees on all of the terms. While it sometimes may take longer to get an agreement reduced to writing, if a disagreement arises, it will be much easier to resolve — or enforce — if there… [Read More]

FASTER PAYMENT WITH AN ARBITRATION CLAUSE?

Faster Payment with an Arbitration Clause?

There’s a rumor going around that if you agree to arbitrate, you can get paid faster. True? Well, actually, we’ll give you a true “lawyer” response . . . .it depends. What is Arbitration? Arbitration is a way of resolving a dispute without using the court system. In the court system, a judge who is paid by the government decides who wins the dispute. In arbitration, a private person, who is paid by the parties, decides. Like court, you can present the facts to the arbitrator in a hearing. The arbitrator then makes a decision. What Is an Arbitration Clause? A clause is language in a written contract. An arbitration clause says that if you have a dispute about the… [Read More]

CAN A JUDGMENT DEBTOR EXAMINATION ORDER HELP YOU GET PAID?

Can A Judgment Debtor Exam Order Help You Collect?

The short answer is “Yes.” What is A Judgment Debtor Examination Order? A judgment debtor examination order (sometimes called an “ORAP”) is an order that you can get from the court after you obtain a judgment.   With this ORAP, the court sets a date for the judgment debtor to have to come into court and answer questions about their assets so your lawyer can then take steps to obtain those assets and get you paid on the judgment.  Your lawyer can ask about all the debtor’s assets, including bank accounts, stock accounts, real estate, intellectual property, or any other assets.  Your lawyer also can ask the debtor if anyone else (such as customers) owe them money because you can collect… [Read More]

YOU HAVE A SUSPENDED CALIFORNIA CORPORATION. NOW WHAT?

California Suspended Corporation - What to Do?

A suspended California corporation.   What does it mean?  What do you need to do? Why Did Your California Corporation Get Suspended? In California, if you do not pay your corporate taxes, your corporation will be suspended.   You can find this rule in California Revenue & Taxation Code section 23301.   The same thing can happen if you don’t file a corporate tax return.    This can also occur if you do not timely file either the original Statement of Information for your corporation or file  your corporation’s annual Statement of Information.  (See California Corporations Code section 2205.)  So, if your California corporation is suspended, it is likely because you did not (a) pay your taxes; (b) file a tax return or (c)… [Read More]