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Can restitution judgments be recovered?
However, can they be assigned to a judgment enforcer? That depends on which state. Sometimes the court clerks at criminal court know very little about judgment enforcement, but the same forms can work in those courts. One must make sure the restitution order is payable to the creditor, and not to the court or state.
Most judgments start when a person or entity is harmed in some way, usually financially. Criminal restitution orders and judgments begin with a crime, when a criminal is ordered to pay money to compensate their victim. My articles are my opinions, and not legal advice. I am a Judgment Broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.
I have read that Federal criminal restitution orders and judgments do not expire until they have been repaid in full, and that if a Federal restitution judgment is not paid in full at the time of the death of the defendant debtor, their estate can be attached for any unpaid balance. For the purpose of recovering money, most criminal restitution orders are eventually converted to civil court judgments. Civil court judgments eventually expire, however they can usually be renewed.
In some states, restitution orders can be modified after the restitution judgment is rendered. Sometimes the (former) criminal debtor or their lawyer can convince a judge they are broke, and the judge may reduce the amount owed to the creditor victim. Sometimes restitution orders or judgments, do not specify that the defendant debtor pay interest on the amount of the restitution, so interest cannot be collected.
Often, the first criminal restitution judgment or order recovery attempt, starts at a parole or probation office, or another government agency. When a government entity cannot recover all of what is owed, or the probation ends, or for other reasons; any restitution recovery will then become the responsibility of the victim creditor. Usually, the usual way to recover money from a criminal restitution judgment is through the civil court system.
Criminal restitution judgments are usually "bankruptcy proof". However, for the purpose of recovering money, they are just judgments, because the former criminal is now a regular judgment debtor. As with regular civil judgments, most criminal restitution judgments are never recovered. Restitution judgment recovery depends mostly on the available assets of the judgment debtor, and often an attorney or some other expert's help is required.
In most states, for the original victims or their lawyers, restitution orders can be recovered in the same manner as civil money judgments, including recording abstracts of judgment against the defendant debtor. While the Rules of Criminal Procedure varies in each state, a popular way to make a criminal restitution judgment enforceable in regular civil courts, is to get the criminal court to issue a certified Order for Restitution and Abstract of Judgment. (In California, Judicial Council Form CR-110/JV-790 is used.) The abstract of judgment is then taken to a civil court where they open a new civil case file, and a fee is usually required.
For judgment enforcers, that have judgments assigned to them; everything depends on which state. In some states, criminal restitution awards are not assignable, and only an attorney can recover someone else's criminal restitution order.
To assign the rights of a criminal restitution order, the usual and/or proper method is to get a court order, approving that from the criminal court. Some judgment enforcers take a shortcut, and treat criminal restitution orders as if they were regular civil money judgments. That is not fully legal in every state. For example, in California, CCP 673 and 680.240 only applies to civil money judgments. There is no provision in the California Civil Codes for transferring the victim's rights in a restitution order, that was issued by the criminal division of the Superior Court.
In some states, only attorneys enforce criminal restitution orders and judgments. Some non-attorney judgment enforcers have successfully enforced criminal restitution orders in civil court. To do this correctly, contact the local District Attorney's office for specific directions on how you might proceed. They cannot give you legal advice because even though they are attorneys, they are not your attorney. However, they can tell you procedurally which courtroom to go to, to submit your motion, asking the court to approve an assignment of a criminal restitution judgment to you.
Many laws are complicated, and sometimes contradict other laws. One example of a law covering Federal criminal restitution judgments is Federal Rule of Civil Procedure 69(a)(1), that specifies that judgments be enforced with writs of execution and "must accord with the procedures of the state where the court is located, to the extent it applies". Another relevant law example is The Federal Debt Collection Procedures Act of 1990 ("FDCPA"), that includes the statement "with the exception of conflicting federal law, the FDCPA provides the exclusive civil procedures to recover a judgment".
The FDCPA also says in 28 USC §3003 (d and f), that it "shall preempt state law to the extent such law is inconsistent". How long do Federal criminal restitution judgments last? An example of an "inconsistent state law" is California Civil Procedure Code section 683.020 (1987), which precludes enforcement of a restitution judgment after ten years from the entry of the judgment. This "inconsistent state law" has been preempted before, see http://caselaw.findlaw.com/us-9th-circuit/1477403.html
When you are planning to recover a criminal restitution judgment, consult with a lawyer for anything you are not sure about. With criminal restitution orders and judgments, consider also consulting a lawyer about what you ARE sure of.
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