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Enforcing Federal Judgments
Federal judgments can come from many different courts, at many different levels, and can be based on many different causes of action. Some of the strongest Federal judgments originate from bankruptcy courts because they often result from debtor fraud, and cannot be discharged in bankruptcy court because they were issued by a bankruptcy court as a fraud judgment.
As per federal law # 28 U.S.C. 1961, the default federal judgment interest is set to the weekly average of 1-year treasury yields. It changes every week; what else would one expect of the federal government? Note that if the violated contract (that caused the judgment) specified a higher interest rate, Federal courts can preserve that, I have seen a 22% per year federal judgment.
When working with federal judgments, federal laws usually take a back seat in states where state laws apply. In general, one entity (state or federal) is usually silent when the other entity already has laws regarding an issue.
Some federal judgments are good for 20 years before a renewal is required. However, some states have decided to use their own limits: for example, in Florida, the limit is five years.
Generally, one must wait two weeks before starting to enforce a federal judgment. This is because under the rules of Federal Procedures, "Rule 62 Stay of Proceedings to Enforce a Judgment, there is: (a) automatic stay; exceptions for injunctions, receiverships, and patent accounting, a judgment creditor must wait 14 days before they can begin to enforce their Judgment".
One way to locate federal judgments is with PACER. You may find strong "almost bankruptcy-proof" judgments on PACER by picking a state or a district. Note that you must pay the nominal PACER fees to look into the docket and read the details of the judgment to see its status. The judgment might have been transferred to state court, been dismissed, or not be a money judgment. To save money, you can do PACER searches for judgments at any Federal courthouse.
Another advantage to Federal judgments is everything is on PACER, so no need to visit the courthouse to pull records. Another advantage is that many filings, sometimes even writs of execution, are free, and can be done the same say. And in some places, the US Marshall is much faster than the local Sheriff department. In Sacramento, California; Ms. Valerie is the clerk for the civil department of the US Marshall, her number is 916-930-2067, try to call before noon.
Federal cases are fairly easy when it comes to judgment enforcement or investigations across state lines. You simply open a "miscellaneous case" in the district where you want to do the enforcement to register the judgment in that district, then proceed with whatever process you want to do from there. It usually costs about $46 to open a miscellaneous case in a new district.
Once registered, there are lots of advantages to Federal judgments, including you get writs issued the same day. FRCP 69 the bootstrap provision, use it as often as you can, when it benefits you, especially with post judgment strategies when Federal Code is absent. FRCP 45 is what to rely on when issuing federal subpoenas. Federal judgment recovery procedures are usually available for zero cost, with direct email access to the clerks.
Consumer notices are generally not required in federal court cases. FRCP 69(a)(2) allows a creditor to obtain discovery using the Federal Rules or the rules of the state in which the court sits. FRCP 69(a)(2): OBTAINING DISCOVERY: "In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person-including the judgment debtor-as provided by in these rules or by the procedure of the state where the court is located."
There could be times where the State procedure is advantageous; however it seems that the Federal Procedures are usually the best way to go. There are cases when you are serving a Federal subpoena, where you do not need to comply with the Notice of Consumer provisions of the CCP. Because Federal Rules covers this, it prevails over the state CCP.
While federal court follows the state law enforcement procedures on collection of the state in which it sits, this does not extend to discovery or FRCP 45 which relates to subpoenas. I think you still end up with FRCP 45 as it relates to subpoenas, which is a very good thing because the federal rules are very simple to follow and almost never require a clerk or judge to actually do anything.
Many people wait 10 days after serving the adverse party, and before serving thev third-party subpoenaee with the subpoena and a copy of the proof of service (or certificate of service) showing that the adverse party was served 10 days before. This eliminates pre-mature responses from the subpoenaee before the adverse party has had reasonable time to state objections.
Years ago year, the Federal Rules of Civil Procedure about subpoenas were changed to require that the adverse party must first be served (by mail is OK) with a copy of the subpoena before it can be served on the third-party subpoenaee. That is a good idea. I sometimes serve the other side by U.S. Priority Mail, track the delivery, and the have the Marshall levy the bank account the day after delivery.
Often, the court will not honor the subpoena unless you also serve them (the subpoenaee) with a copy of that Certificate of Service showing that you have previously made service on all other parties to the lawsuit, at the time you serve the subpoena.
If one is not the original judgment creditor, a judgment enforcer's first step is to verify the assignment of their ownership of the judgment with the court where the judgment originated at. Make it clear in the body of the assignment form that you are taking assignment of the judgment owned by the creditor for the correct dollar amount.
One usually starts enforcement of a federal judgment at the same federal court, or one may move the judgment to a federal court closer to where the judgment debtor has assets.
The correct way to move a federal judgment to a federal court closer to the debtor is to request a form named "Certification of Judgment for Registration in Another District". It is fairly easy - but remember to keep the captions intact. Fill out and submit this form (B265), with a copy of the judgment, with the clerk at a federal court near the debtor. In many situations, you do not have to notice the debtor when you move a federal judgment into another federal jurisdiction.
Moving federal judgments is called "certification of judgment for registration in another district" by The United States District Court - District of (State)" as specified by the document that was issued and conformed with a seal by the District Judge in the other US District Court. Moving a federal judgment to another federal court closer to the judgment debtor's assets is known as a registered judgment. State judgments can be domesticated into other state courts, Federal judgments can be registered in other federal courts.
If you are representing yourself for a judgment that you own, you have the right to represent yourself in most courts, and you can transfer a federal judgment to any other federal court. You need a certified copy of the original judgment, and if you are an assignee of record, a certified copy of the assignment.
What if you are an attorney representing someone with a Federal judgment? Do you have to be a member of the state bar in the state where the Federal judgment is being moved to? As far as I know the answer is no, because of "pro hac vice". The rules are different from state to state, generally a local lawyer is hired to represent the first attorney, using a pro hac vice application on behalf of the foreign attorney. If the application is granted, the foreign attorney is allowed to act in that case. It is best to pick an attorney close to the Federal court house, and try and find one that will charge reasonable prices.
One reason to move a bankruptcy judgment to a regular federal court is most bankruptcy courts are not familiar with post-judgment recovery procedures. Some bankruptcy courts are hostile to pro-pers.
A federal judgment can be "moved" to a state superior court, if you start and win a new lawsuit in state court. If you start a new lawsuit in state court, there are few shortcuts, the debtor must be personally served, and can contest the lawsuit, and a motion for summary judgment must be won.
Some federal courts let you use state court forms, others have the forms for their particular court.
One begins to enforce a federal money judgment by getting a writ of execution, according to federal rules of civil procedures, Rule 69 "(a) in general, (1) money judgment; applicable procedure". A money judgment is enforced by a writ of execution, unless the court directs otherwise.
Use a (CV-24) Affidavit and Request for Issuance of a writ of execution, and the writ itself (CV-23). You might want to request from the court a "Request to use a Process Server", so you do not have to use a Marshall.
Process servers are usually much quicker, easier, and more convenient, than the Marshall. You have a choice, petition the court to allow you to use a registered process server, or use the Unified Financial Management (UFMS) form, a very complex form to allow the Marshall to do the levy. Be aware that some Federal Marshalls will not levy cash, checks, or credit cards.
Assignment of judgments in Federal courts are generally the same as in state courts, usually the local state forms work fine. Federal assignments of judgment can happen in common federal courts, or in a federal bankruptcy court. Federal courts often do not have all required judgment recovery documents (except for writs), for example recording liens or satisfying judgments. So, follow your state rules and use a state form, for example record a UCC or property lien.
Usually, federal courts are much less crowded. I have heard of cases where on a federal debtor examination, and it is just the creditor, the judge, the bailiff, and the debtor, alone in a beautiful court room.
The Federal writ is used in proceedings supplementary to, and in aid of judgment or execution. This must be done in accordance with the laws of the state where the court is located, but federal laws also may apply. As a matter of fact, one must abide by all laws of the state you are enforcing a judgment in. If you take a Federal California judgment and move it Montana Federal court, you must follow Montana laws about judgment recovery.
Banks need orders from the Sheriff or Marshal. In California, banks will say they cannot send the money without notification from the levying officer as per CCP 700.160(c). One reason for this is the bank is looking for a notice from the levying officer that no third-party claims were filed, in California this would be as covered by CCP 700.140(b) and CCP 701.030.
One problem is the Marshall may not issue such notices, because they do not have to follow state laws if they do not want to. This is usually the bank's problem so tell them to pay or you will sue them in Federal court, after supplying them with evidence the account is unencumbered and should be subject to levy. Usually sending this to the bank's council gets things moving.
With federal judgments, one does not use the civil Sheriff, they use the Marshal's office. Unlike State judgments, federal judgments can be easily moved to where the debtor's assets are, anywhere in the USA. As an example if you find a bank account in another state that belongs to the debtor, simply call the federal marshall's office in the same court jurisdiction (location) and ask them if you can forward your writ for handing. If not you must prepare a certification of judgment for registration in another district, and transfer the case to the court near the asset and have the marshall serve the writ.
Federal interest rates are very low, and federal interest does not accrue automatically. To collect interest, you must calculate the amount of interest accrued to date, and then periodically file what is called an AFFIDAVIT OF ACCRUED INTEREST pursuant to 28 U.S.C. Section 1961 (a,b). Otherwise, you cannot get a federal writ of execution for any dollar amount other than what was stated on the judgment.
If a federal judgment states a percentage, you get nothing in the way of interest, pre- or post-judgment, unless you file the AFFIDAVIT OF ACCRUED INTEREST.
Also, you usually cannot claim pre- or post-judgment "recoverable court costs" unless the judgment so awards them. If your judgment does allow for them, you then would file what is called an "affidavit of accrued interest and postjudgment costs."
To perform discovery on a federal money judgment debtor, one may follow federal Rule 69 part 2 "(2) Obtaining Discovery. In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person, including the judgment debtor, as provided in these rules or by the procedure of the state where the court is located."
More information can be found at:
Federal courts usually have a limit of 25 questions you can ask a judgment debtor with a SDT or a production of business documents. Of course the federal judgment must be registered in the same district in which your judgment debtor resides.
In Federal Court, you file a motion for a judgment debtor exam, using the same forms as used the State court you are in. In California, this would be an Application and Order for Appearance and Examination (EJ-125). However in Federal court, there are usually no fees for scheduling an examination, as there would be in State court. If your judgment debtor refuses to appear, it is usually a far more serious situation. The judge can order a Federal Marshall to arrest your judgment debtor, unlike the "joke" when California state court issues a civil bench warrant. Federal Marshalls take their jobs seriously and will investigate and find the debtor to arrest them, something almost no California Sheriff will do.
In Federal courts, there FRCP 26 is required, that deals with mandatory disclosures and/or conferences, in post-judgment matters:
LBR 7026-1. DISCOVERY:
(a) General. Compliance with FRBP 7026 and this rule is required in all adversary proceedings.
(1) Notice. The plaintiff must serve with the summons and complaint a notice that compliance with FRBP 7026 and this rule is required.
(2) Proof of Service. The plaintiff must file a proof of service of this notice together with the proof of service of the summons and complaint.
Anyone enforcing a federal judgment must do their own homework to determine answers to inconsistencies, such as the ones mentioned in this article.
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