I am not a lawyer, I am a judgment judgment Broker. This article is based on my experience in California. Laws vary in each state, and nothing in any of my articles should ever be considered legal advice.
This article is my opinion about naming issues on writs of execution, levies, and garnishments. When requesting a Sheriff to perform a till-tap (where they intercept cash flow for a short period of time) or a keeper (where they stay at a business and inventory its assets for possible sale by auction), or to seize property for sale at an auction, exact judgment debtor names are required.
Sometimes people sue businesses without indicating the correct entity name, and sometime entities change. For example Bob’s Burgers might grow and become Bob Burger’s Inc.
What if a debtor is a fictitiously named DBA (Doing Business As) business, and they are sued to create a judgment that did not specifically name any legal entity designation? In that case, you cannot change the debtor information on the writ without a motion and a judge’s signature.
While “you may, not shall” request the legal entity designation to be listed on the writ post-judgment per CCP 116.560(b) and 116.630, the Sheriff will not perform a levy action without a correct legal entity designation on the writ.
CCP 699.520 (c) changed on 2011 from previous years, and now states a writ must include: “the name and address of the judgment creditor and the last known address of the judgment debtor. If the judgment debtor is other than a natural person, the type of legal entity shall be stated”.
Even if a judgment was issued in 2009, the new version of CCP 699.520 (c) now applies. You need at least an affidavit of identity signed by a judge to amend the name on a judgment. For example, to include Rip Off Auto Repair as an AKA (Also Known As) of Barry Clark.
Even if your judgment is against Bob’s Burgers, you cannot simply put Bob’s Burgers on a writ and levy paperwork. At least in California, your writ and paperwork must list the legal entity status and name. Examples would be Barry Clark DBA Bob’s Burgers, Bob’s Burger’s LLC, or Bob’s Burger’s Inc.
The solution is an affidavit of identity. This changes the legal name on the judgment to match the judgment debtor’s DBA – unless there is a reason the named entity is legally not responsible for the judgment debt. For example, a corporate entity is separate, and one cannot add an INC or LLC to a judgment with a simple affidavit of identity.
It is possible to get an affidavit of identity approved by mail, as long as the debtor is served a copy of what you are proposing. If you mail an affidavit of identity to the court with a request for a writ, sometimes they overlook it, so include a short note alerting them of your affidavit of identity.
While an affidavit of identity can be done for each levy attempt, it is often better to do it once, by itself, before any levy attempts. Doing this once will permanently change the name on the judgment, making it easy to get a writ with the correct legal entity name, to accomplish future levies.
If a DBA debtor creates a corporate entity with the same or a similar name, it creates a barrier to judgment enforcement. To overcome this barrier, one must start a new lawsuit to show proof of alter-ego or business liability for the judgment. That is beyond the scope of this article. One tip is to use not just one or two examples/cases/reasons supporting your case, instead provide as many examples showing why the court should grant your motion. Make the judge feel that it would be hard to deny your motion.