Many judgment owners that contact me claim they have a rock-solid judgment worth a lot of money cash upfront; because they have a judgment against a company, and have already recorded a lien against that company, and although that company is now doing poorly or is out of business, but the person owning the company is rich, so “all you have to do is to go after the person to make them pay”.
The problem is, when a company is a corporate entity, it usually shields the owners from all the company’s liabilities. If the company was named slightly differently than on the judgment, it can be relatively simple to amend the judgment to correct their name, as long as there are no new parties involved.
If a judgment creditor did not sue a person, the only way to try to add a person to that judgment later is to attempt to prove fraud with another lawsuit. There are 3 problems with this; it is very expensive, there is no guarantee it will be successful, and it will not help if the person has insufficient available assets. Judgment buyers pay very little cash upfront for judgment situations like this.
This article is my opinion, 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.
A few other creditors tell me they have a judgment against a DBA (Doing Business As) business and recorded a lien against that DBA company, “So my lien also attaches to the business owner’s house”. The problem is, that lien only attaches to the exact name(s) listed on the judgment which enables that lien.
A DBA, also known as FBN (Fictitious Business Name) is an alternative name for person(s) and is not a separate legal entity. A judgment only against a DBA name alone, must be amended for a chance for it to be enforced, and a recorded lien against only a DBA usually has no power.
Even though a DBA/FBN is not a separate legal entity, it can be seen as a distinct related entity attached to a person. Because of this, in most states, bank accounts in the name of DBAs can be levied if the creditor provides a declaration and proof of who owns the DBA. In California, as per CCP 700.160, a person’s bank account held in the name of a DBA can be levied by supplying an unexpired certified copy of the FBN certificate.
If the judgment debtor’s name on the Writ is just an individual name without the DBA, then a certified copy of an FBN is required to levy on a bank account standing in the name of the DBA. I would include the certified copy when the Writ has the DBA listed, just so there will not be any problems. The California code is not entirely clear on that point, see CCP 700.160:
700.160 (a) Except as provided in subdivision (b), a deposit account or safe-deposit box standing in the name of a person other than the judgment debtor, either alone or together with third persons, is not subject to levy under Section 700.140 or 700.150 unless the legal process served on the third party includes a court order authorizing the levy.
(b) A court order is not required to levy on a deposit account or safe-deposit box standing in the name of any of the following:
(1) The judgment debtor, whether alone or together with third persons.
(2) The judgment debtor’s spouse or registered domestic partner, whether alone or together with other persons, provided an affidavit is delivered to the financial institution at the time of levy showing that person is the judgment debtor’s spouse or registered domestic partner.
(3) A fictitious business name, provided a copy of an unexpired statement certified in accordance with Section 17926 of the Business and Professions Code is delivered to the financial institution at the time of levy, the fictitious business name statement does not list any person other than the judgment debtor, the judgment debtor’s spouse or the judgment debtor’s registered domestic partner as the person or persons doing business under the fictitious business name, and, if a person other than the judgment debtor is listed in the statement, an affidavit stating that the other person is the judgment debtor’s spouse or registered domestic partner is delivered to the financial institution at the time of the levy.
(4) The additional name of a judgment debtor listed on the legal process pursuant to an affidavit of identity as provided by Section 680.135, whether alone or together with third persons.
(c) In any case where a deposit account in the name of a person other than the judgment debtor, whether alone or together with the judgment debtor, is levied upon, the financial institution shall not pay to the levying officer the amount levied upon until being notified to do so by the levying officer. The levying officer may not require the financial institution to pay the amount levied upon until the expiration of 15 days after service of notice of levy on the third person.
If a judgment is only against a sole proprietorship’s DBA business name and a lien is recorded in that DBA name, that lien will not attach to any real estate property owned by the business owner. To enforce a judgment against any type of property, both the judgment and any liens, must have the same names as the registered property owner.
Title companies are not required to search for name variations or business AKA names of the owners of real estate property. It is the responsibility of the creditor to make sure their lien attaches. A lien in the name of Dan Debtor will most likely never attach to property owned in the name of Daniel T. Debtor, trustee of the “Debtor Family Trust dated May 16, 2005”. One solution is to get your judgment amended to include the name of the business owner. In California, this is usually done with an affidavit of identity.
You could then record a brand new lien based on that amended judgment, however that would cause that new lien to lose any lien priority that it formerly had. A better idea is to record an amended lien (in California, see CCP 674), because that will preserve the first lien’s original recording date priority. The amended lien/abstract will retain the original date of filing for lien priority if it is properly completed by (e.g.) checking the correct box, and referencing the original lien recording number.