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Affidavits Of Identity
Sometimes you sue an entity, and later they change their name. Sometimes you were in a hurry to sue an entity, and did not have time to discover all the real names they are doing business as, or use. Sometimes debtors start a DBA (Doing Business As) businesses, or you later discover this after the judgment was awarded.
To add a new debtor entity to a judgment, usually requires a complex and expensive new lawsuit and court trial. This is because you must persuade a judge to add a debtor to a judgment, which requires personal service on all parties, money, luck, lots of evidence, and a full court trial.
However, many times all you need to do is add an AKA or a DBA to a judgment. Examples are when you discover the debtor has become married and now uses a different last name, or owns a non-corporate business, has other names they use, or they changed their name. In this case, the court procedures are much easier, you can simply do an Affidavit Of Identity.
An Affidavit Of Identity (AOI) does not add new debtors to a judgment, it is just a request to the court to add the AKAs and DBAs of the debtor named on the judgment. An AOI can also be obtained for a corporate business judgment debtor that also owns a DBA business name.
What if you sued XYZ Car company, which is a DBA of John Commonname, who showed up in court to defend XYZ Car company, and lost; so a judgment was entered against XYZ Car company? To get writs from the court, you may have to add John Commonname as a DBA of XYZ Car company using an Affidavit Of Identity (AOI). As long as XYZ Car Company is not an Inc, or a LLC, with a certified copy of the fictitious business name statement, it should be no problem. Also, if that a corporate entity judgment debtor is suspended, you might be able to add them as a DBA of the person running the suspended company.
Another example, if you sued Barry Clark, and you later find out he uses (and keeps a bank account) under the name of Barry William Davis Clark, or if Barry starts a non-corporate business as a DBA, an Affidavit Of Identity (AOI) can be used.
Note that an AOI cannot be used to add Barry's spouse to a judgment, or his Class C corporation, or his business partner. To do that requires a new lawsuit to prove alter-ego, or veil-piercing, fraudulent transfers, etc. AOIs can only add other AKA names that Barry uses to the judgment.
One can do an AOI with the court just once, and the updated names will then be on the judgment at the courthouse. For the life of the judgment, one must use the amended names in court. For example, if you filed a AOI to add the AKA of Barry David William Clark, all future writs, motions, and future paperwork must use the naming of Barry Clark AKA Barry David William Clark.
As an alternative to using an AOI you can use certified evidence. If Barry has a DBA business called Barry's Bikes, and has a bank account under that fictitious name, one could make an affirmation with some evidence such as a certified copy of a Fictitious Business Name (FBN) certificate, and attach it to the writ for each levy attempt.
In California, to levy a bank account that is a DBA of the debtor, you must provide a certified copy of their FBN certificate. But what if it has expired? If your circumstances do not fit into one of the exceptions listed under CCP 700.160, then you need to obtain a court order to perform the levy. Getting a AOI done first solves this problem.
Sometimes California Sheriffs do not want to accept Affidavits Of Identity. Also, sometimes Sheriffs do not want to accept documents belonging to the assignee of record, or to levy a judgment debtor's spouse; in that case, ask the Sheriff to call the court supervisor.
California, CCP 700.160(b)(2) is pretty clear. All you must do is to provide a Writ of Execution and a Declaration Under Oath (Affidavit) to the levying officer stating that the person who's account you are levying on, is married to the Judgment Debtor; in addition to the Request for Levy showing the name of the debtor and the bank information that you put on there. You might want to ask for a Supervisor and show them CCP 700.160(b)(2). If they still do not comply, go another level higher. Everybody has someone they report to.
To get a court hearing for your AOI, you must prepare your paperwork, file it with the court, and get your debtor served (sometimes by mail) notice of the future court hearing.
At the hearing, you can point out that even if the debtor lets their FBN expire, their DBA or FBN should be added to the judgment because it's still an alternate name of the debtor. Also, at a court hearing designed only to add an (AKA, FBN, or DBA) of a debtor, but not take their assets at that time, the debtor is less likely to appear in court, and you will win your AOI. Some (especially small claims) courts take your motion and evidence and check, and will have a judge decide this, so be sure to bring a self-addressed stamped envelope just in case.
In most cases, AOI orders are "nun pro tunc orders", meaning "now for then", retroactively changing the judgment debtor name on the judgment as if that was the name they were sued as.
Some small claims court make you use their forms, in California it is form # SC-105. On this form you simply ask the court to add Bobby William Davis Clark as a DBA of Bobby Clark, so this judgment may be enforced. Then you provide the proof you have - for example, a check from the debtor, a document, a database search, etc. Always submit proof of the debtor's AKAs, along with your affidavit.
If the judge says no, perhaps try again, with more data reports from vendors such as LexisNexis or TracersInfo, or some other data service too, the more different sources them more it will impress the judge. Also, If the notice of the hearing is personally served, one could ask the judge, "the debtor was personally served and did not show, so they did not object, so please consider granting this name change by default?".
If you are going to get an affidavit of identity, make sure to list every AKA of your debtor you can find, and every variation of their name, to cover all your bases. It is best to get certified records, especially when not in small claims court. Some courts charge for affidavits of identity, other courts do not, and some are inconsistent and change different amounts or sometimes charge and sometimes don't. Motions in some courts have strange rules that you will need to learn such as supplying two copies for the court, one not stapled or fastened so they can easily scan them. Also, you may have to identify exhibits with page tabs, not internal sheets with "EXHIBIT A", etc.
If the court does not have their own form, see the text below. I am not a lawyer, and this text is just an example, and will need to be changed to work in your court. It is intended to be a starting reference to modify, for the court and state you are working in:
Your Name and Capacity (Original Judgment Creditor or Assignee Of Record, In Pro Per)
Your address, phone, fax, and email.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
Paul Plaintiff (Plaintiff)
Dan Debtor (Defendant)
CASE NUMBER: case number
DECLARATION, AFFIDAVIT OF IDENTITY, Proposed ORDER, AND POINTS OF AUTHORITIES. (In California: CCP 680.135 and CCP 674.(c)(1))
COMES NOW Paul Plaintiff, in the within matter, and hereby provides the following Declaration in support of an AFFIDAVIT OF IDENTITY:
1) I am the (Original Judgment Creditor or Assignee of Record) in this matter. I am over 18 years of age. I have personal knowledge of the facts herein, except as to those facts stated to be known upon information and belief, and as to those facts, I believe them to be true. If called upon to testify, I could and would competently testify thereto.
2) On March 29, 2010, the court entered a judgment in this action in favor of PAUL PLAINTIFF and against DAN DEBTOR, in the amount of $15,000.00 principal, plus $150.00 in costs, together with interest at 10 percent per annum, is still outstanding.
3) In reviewing (In Camera) public records from sources supplied to the court (name your evidence sources attached) - it is clear that the debtor's name DAN DEBTOR is also known as DANIAL DEBTOR and DANIAL ZE DEBTOR. Each alias has the same social security number and date of birth.
4) For this reason, in preparation for enforcement of this judgment by actions including filing Writs of Execution from this court, I wish to list on the judgment the name(s) DANIAL DEBTOR and DANIAL ZE DEBTOR as aliases of DAN DEBTOR.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Signed this 7th day of July, 2010 at San Jose, California.
____________________________________________ (Original Judgment Creditor or Assignee Of Record, In Pro Per)
Order Approving Affidavit of Identity.
The affidavit of identity having been considered by the court and good cause appearing, IT IS ORDERED that the name(s) DANIAL DEBTOR and DANIAL ZE DEBTOR as aliases of DAN DEBTOR be added to the Judgment, Writ of Execution, Abstract of Judgment, and other documents necessary to enforce this judgment.
Dated and signed : ________________________
Judge or Commissioner of the Superior Court of California
MEMORANDUM OF POINTS AND AUTHORITIES
In California, CCP 680.135 and CCP 674(1).
What if the court says no to your affidavit of identity because you cannot add new defendants to the existing judgment? Then, add the other names, not on an affidavit of identity, but through a motion to add them as an alter ego of the debtor. This requires a noticed motion, so the other side will get served. noticed. Get certified copies of everything that you can. The caption on your motion might read, "Motion to add X Y and Z as alter egos of judgment debtor A B and C" If you are lucky they will not show up or if they do have no evidence to refute your evidence.
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