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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10237
Experience:  Civil litigation attorney for individuals and businesses.
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I reside in California. I have judgement from the CA

Customer Question

I reside in California.
I have judgement from the CA Superior Court for unpaid credit card debt. Amount owed was approx. $20k and few months ago court levied my bank account approx. $13k. Today, I received court documents in the mail subpoenaing my current motorcycle finance company for copies of credit application, last 3 months payment information, and bank information. My motorcycle was purchased 3 months ago with my mother co-signing the loan. She appears on the DMV registration along with myself. Registration reads "my name" OR "my mother's name". Currently the value of the bike is approx. $19K and loan balance is approx. $20K. My question is if the court can seize the bike or add lien on to the existing loan? I'm assuming that the creditor thinks that this bike can be seized otherwise, I don't understand their intent. Thanks
Submitted: 11 months ago.
Category: Legal
Expert:  CalAttorney2 replied 11 months ago.

The creditor is more interested in what you put in your credit application - i.e. where you bank, where you work, etc. so that they can take other collections actions against you (such as further bank levies, further wage garnishment, etc.).

They can place another lien against the motorcycle, but if it is already "underwater" (you owe more than it is worth), it is unlikely that they will attempt to levy on the bike. In order to levy it, they would have to sell the bike, pay off the creditor (the lender that you borrowed from to purchase the bike), and then try to get something towards the payment - it is unlikely a judge will give them an order for levy if you owe this much on the asset.

Customer: replied 11 months ago.
The bank is under LLC with myself as the managing member. Can they levy this account? Judgement named myself but nothing about my company or bank account under my LLC.
Expert:  CalAttorney2 replied 11 months ago.

If you own the business (the LLC), they can pursue your interests in the LLC - if you have other members that are also owners - this will complicate how they can pursue this, but owning an LLC does not "shield" the assets (see my discussion below on how "limited liability" works).

  • Both Limited Liability Companies ("LLCs") and Corporations (both "S-Corps." and "C-Corps.") enjoy "limited liability." This means that the owners of the entity ('members' in the LLC and 'shareholders' in the corporation) are not personally liable for the debts of the entity. So if the entity suffers a loss (defaults on a debt, or is found liable for a tort claim), the creditor is only entitled to recover against the assets of the entity (so any assets that belong to the entity, or any insurance policy held by the entity).

    There are 3 exceptions: (1) if the owner has agreed to act as a "personal guarantor" (usually you will see this with a lease, where the landlord requires the owner to guarantee the lease terms in the event the entity defaults); (2) if the owner causes their own tort (we are always liable for our own torts, for example, if the owner is driving a company car and hits a pedestrian, both the owner and the entity are liable); and (3) "veil piercing" (this is not very common, but can happen if the entity is "undercapitalized" - discussed in more detail below).

    Veil piercing is used to compensate an injured party that is harmed by a company (either LLC or Corp.) that is inadequately capitalized (or even less commonly, due to "irregularities" in corporate structure - but this is largely disregarded). What happens here is when the entity does not have enough money or assets to cover the type of risk created by the activity they are engaged in. A good example is a taxi company that doesn't have any assets (it leases a car, has no accounts receivable, no employees, and no insurance). It simply doesn't have sufficient assets to cover the type of risk it is placing on the general public (driving around mid-town with pedestrians and other vehicles everywhere). If another person is injured, they will be entitled to sue the entity's owner directly (via "veil piercing") in addition to the entity because there was inadequate capitalization. This problem can be easily fixed, if the taxi company in our example simply took out a reasonable insurance policy, they could cover foreseeable losses and the owner would not be subject to liability (they have "capitalized" their company).

    (You also see veil piercing used to prevent owners from using their companies to perpetuate fraud on third parties - so you cannot create an LLC or Corp. to defraud people and then hide your own assets, think Bernie Madoff).

    This limited liability only works "one way" - you can protect your personal assets from debts of the LLC, you do not protect your assets of the LLC from your personal debts. Many people get confused with limited liability, and believe that if they set up a separate entity, they can protect assets from their personal debt collectors (so they can shield their personal assets from their personal debts by placing their belongings into an LLC). It doesn't work this way. If a creditor has a judgment against an owner, they will simply take the owner's interest in the entity (so a member's interest in the LLC, or their shares of the corporation), and in this way take control of the individual assets.

Customer: replied 11 months ago.
That makes sense. One more question. How long can they pursue to collect? Is there statue of limitation on judgments in CA?
Expert:  CalAttorney2 replied 11 months ago.

A judgment is good for 10 years in CA, but it can be renewed every 10 years (indefinitely), so as long as the creditor remembers to renew the judgment before it expires they can collect until either (1) the judgment is paid off, or (2) the debtor declares bankruptcy.

But, if they fail to renew within 10 years (if they wait 10 years and 1 day), the judgment is no longer enforceable.

Customer: replied 11 months ago.
If I try to settle with the law firm that's handing this judgement would they accept less amount or payments? And does that help my credit score in the long run? Should I attempt to contact them or should an attorney? What would you change to help me negotiate with this firm?
Expert:  CalAttorney2 replied 11 months ago.

When trying to settle a debt, creditors generally prefer lump sums over payment plans. They are often willing to accept an amount less than the full debt (the trade off is that they get a quick payment and don't have to worry about ongoing collection costs or administration). If you do not have the ability to offer a lump sum for something the creditor will accept (some will accept a small portion, while others want close to the full amount), you can try a payment plan, these are less satisfactory to the creditor (especially if they have a lien on your property already), but if you are willing to offer something with a reasonable chance to get the creditor a large amount of their debt back, you are likely to get them to accept it.

Whenever working with a creditor, make sure that you keep your communications in writing (if you speak to someone by phone, promptly send a confirmation letter to summarize your conversation), as this will help to ensure that there is no confusion later on, and you will be able to enforce your settlement against any future collection efforts.

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