Can you get a court to approve a turnover order without a debtor examination? I am not a lawyer, I am a judgment broker. This article is my opinion, based on my experience in California, and laws vary in each state. If you ever need legal advice or a strategy to use, please contact a lawyer.
This article is about using general turnover orders not tied to debtor examinations. Turnover orders can be used to reach non-exempt debtor assets, including those that cannot be reached by regular Sheriff levies.
A turnover order is an order from the court, for a judgment debtor to turn some of their property over to the Sheriff to satisfy a money judgment. Personal property subject to a turnover over include property that requires possession, documentary evidence of title to property, a debt owed to the judgment debtor, chattel paper, documents of title, instruments, securities and money.
In general, a Sheriff will only levy a judgment debtor’s property if you specify exactly what and where the debtor asset is, and only if the judgment debtor cooperates. Without a court order, the Sheriff will not break down a door or pick a lock to recover assets for a judgment creditor.
A turnover order, like an assignment order; tells the judgment debtor or a third-party holding the debtor’s non-exempt assets to get it and deliver it to (usually) the Sheriff. When the assets are cash or cash equivalents, the court may sign an order for the judgment debtor to turn the cash over to you. When the assets are not cash, the court almost always will require all assets be given to the levying officer, usually the Sheriff.
To get a turnover order approved, it is best to show the court that you have tried other enforcement techniques first, such as first getting a writ of execution, searching for bank accounts, tried to garnish the debtor wages, etc. It also helps if you have scheduled a debtor exam, even if the debtor does not show up, because that is further reason a turnover order should be granted.
The spirit of the turnover order is to tell the judgment debtor, the court does not care where you hid your assets, get them and deliver them. This is a powerful tool in judgment enforcement, however most judges want to see plenty of reasons and evidence why they should grant a turnover order.
Turnover orders should be as specific as possible. While some judges may sign a Turnover order saying only “every coin in the debtor’s coin collection”, it is best to propose orders that also specify the address where the coins are located. The more sneaky a judgment debtor is, the more generic a turnover can be.
A turnover order is like a permission slip to ask the Sheriff to do something. For that reason, always get a writ of execution first. You could (in California) point out to the court that, unlike CCP 699.040, a writ is not required to obtain the turnover order as per CCP 708.205; however writs are cheap so it is best to get one in case the judge does not want to research laws.
With the possible exception of a turnover of cash at the end of a debtor examination, anything listed in a turnover order is handled through the normal procedures of the civil Sheriff department. Turnover orders can be done ex-parte.
In California, turn over orders are covered by CCPs 482.080, and to a lessor degree, CCP 483.010. CCP 483.010 is written in a confusing way. One important part of CCP 483.010 is that you cannot ask for the title to real estate property on a turnover order. I am not a lawyer, and it is my opinion that this is because CCP 483.010 was written for pre-judgment attachments. It was designed to attach to property that might disappear during litigation. Some judges allow post-judgment turnover orders, when necessary, as a valid substitute for conventional levies.
Other states may call a turnover by a different name. Anything that is not exempt can be seized with a turnover order. The creditor may have to either provide or pay storage fees. The creditor may credit bid, or bid at a Sheriff auction for the items being sold. The creditor will have to pay out of their own pocket for the cost of the Sheriff auction.
Of course, not every judge will grant a turnover order, except perhaps a (California) 708.205 turnover order at the conclusion of a debtor examination. CCP 699.040 covers the order to deliver tangible personal property, Of course, the judgment debtor can file a claim of exemption (or a third-party can file a third-party claim of ownership) within 15 days (i.e. 10 days plus 5 days for the Sheriff mailing the paperwork) of having delivered the debtor’s personal property to the Sheriff.
Whether the order is sought using California CCP 699.040 or 708.205, the relief sought is still a Turnover Order. (One just specifies the code section in the caption.) CCP 699.040 says a “Writ of Execution” must be issued prior to a turnover order, and this is true for third-parties too, even though the code only refers to judgment debtors.
Some Turnover order case law examples are:
Palacio Del Mar Homeowners Assn., Inc. v. McMahon, 174 Cal. App. 4th 1386 (Cal. App. 4th Dist. 2009)
Office Depot, Inc. v. Zuccarini (ND CA 2007) 488 F.Supp.2d 920, page 922.
Just getting a turnover order is not sufficient. Understanding the complete process is just as important so the creditor comes to court completely prepared for any eventuality.
If the turnover order is granted, the court will order the judgment debtor to hand over the personal property to the Sheriff so that they can execute on it to enforce your money judgment.
Relevant to turnover orders is California CCP 482.080: (a) If a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer either or both of the following:
(1) Possession of the property to be attached if the property is sought to be attached by taking it into custody.
(2) Possession of documentary evidence of title to property of or a debt owed to the defendant that is sought to be attached. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.
(b) The order shall be personally served on the defendant and shall contain a notice to the defendant that failure to comply with the order may subject the defendant to arrest and punishment for contempt of court.
Also California’s CCP 699.040. (a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following:
(1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody.
(2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.
(b) The court may issue an order pursuant to this section upon a showing of need for the order.
(c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court.
You can use a turnover order to direct the judgment debtor to transfer to the Sheriff a certificate of ownership (“pink slip”) for a motor vehicle; stock certificates (if issued in the name of the judgment debtor); bearer bonds (if in the possession of the judgment debtor – they are not issued in anybody else’s name); watercraft, trailers, motorhomes, etc.
With a turnover order, instead of the Sheriff going out and getting a judgment debtor’s car (or truck or motorhome) you get the court to order the judgment debtor to deliver it to the Sheriff to be levied on (i.e.sold), under penalty of contempt for failure to obey. “Deliver your 2014 Mercedes Benz to the Sheriff’s office by next Tuesday at 4:00 p.m.” is a lot easier than chasing after a vehicle identification number (VIN) on a motor vehicle locked up in someone’s garage, right? If you think the judgment debtor is going to try to sell it or give it away to someone, do not forget to get a restraining order with your turnover order
Here is an example of a turnover order:
Your Name (your capacity – Assignee Of Record or Judgment Creditor)
Your City, State, Zip
Your phone number and email
Appearing In Pro Per
SUPERIOR COURT OF THE STATE OF YOUR STATE
COUNTY OF YOUR COUNTY, YOUR Division (Small claims, civil, etc.)
Paul Plaintiff Case # 123456789
TURNOVER ORDER; POINTS and AUTHORITIES
Date: July 18, 2016
Dan Defendant Time: 9 AM
Judge: Commissioner NAME
The motion of (judgment creditor/assignee of record) YOUR NAME concerning DAN DEFENDANT, the judgment debtor, was examined and heard in this court on the date and the time list above. The (judgment creditor/assignee of record) appeared in pro per.
Pursuant with the Declarations and Points And Authorities submitted by (plaintiff/assignee of record), and finding that a writ of execution has been issued, and there is a need for this order, for good cause, hereby
1) ORDERS that the following non-exempt property be immediately turned over by the judgment debtor to the bailiff who will transfer the property to the Civil Division of the Sheriff’s Department of YOUR county, with instructions to apply the property to any unsatisfied writ of execution for case number 123456789
——- room to write ———
2. ORDERS that the following non-exempt property be turned over by the judgment debtor to the Civil Division of the Sheriff’s Department Of Your County within five (5) days of the earlier of (a) when this order is personally served on you or (b) when you receive actual notice of this order with instructions to apply the property to any unsatisfied writ of execution for case # 123456789.
——- room to write ———
It is further ordered that this Order shall be promptly personally served on the judgment debtor, and NOTICE IS HEREBY GIVEN that failure to comply with this order may subject the Judgment Debtor to arrest and punishment for Contempt Of Court.
Dated: __________ Signed ________________________