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The Bank Levy
(In some states called a Bank Garnishment)
Many people wonder
how the can do a bank levy to collect the money owed on their court judgment.
After all, bank levies are a great way to get the court judgment paid
all at once. It doesn't matter if you judgment is from Small Claims Court
or regular Civil Court. There are a few factors to consider.
1) Do you
know where the debtor banks? If some cases you may have an old
check from the debtor. Or perhaps he was a former friend or business
partner, and you know where he banks. But of course he may have closed
his account to avoid you. You can't be sure. There are several legal
ways to find a person's bank account. You can find those at www.collectfromyourdebtor.com.
But remember
this too-most people bank at one of the 4 or 5 major banks in an area.
When all else fails, why not levy on all of the banks at the same time?
In most states (not California) it doesn't matter which branch you levy
upon. Any levy on any branch is good for all accounts held by that bank
at any location in the state.
2) How Much
does it cost? The cost of levying on a bank is minimal in most
states. You need a Writ of Execution (sometimes called a Writ of Garnishment).
The cost is anywhere from $7.00 in California to over a hundred dollars
in Florida. Then you can ask the sheriff to serve the bank for you.
The writ of execution is the instrument the sheriff uses to levy on
the bank for you. The writ tells the sheriff how much your money judgment
was for, what costs you've had so far enforcing the judgment, and how
much interest is due on the judgment. This "writ" is stamped
and signed by the court, and mailed back to you.
Most states have
a website where you can get their writ online in a PDF file. Or you can
find one for a small price at Legal
Zoom. When you have the writ, just type in the information and the
amounts. You'll need to compute interest too, based on your states interest
rate per year. The judgment
calculator from www.judgmentrecoverycourse.com is
a useful tool to help you calculate this.
In most states,
when you fill out the Writ of Execution (remember, it's sometimes called
a Writ of Garnishment) you'll also have to complete an accompanying form
usually called a "Memorandum of Costs." This "memo of
costs" is where you justify the interest as well as the reason for
the additional court costs you may have had, such as a judgment debtor
examination, process service, and so on.
This may seem
complex, but if you take it a step at a time it's quite doable. Fill
out the forms. Call your court to get the exact cost for submitting the
writ. The court may well have a free legal advisor who can give you specific
details about what goes where on the writ. Do it. Then, just mail it
in, or take it to the court (with a check to cover the fee).
Then call the
sheriff to see what the cost is for serving the bank or banks. In some
counties sheriffs are too busy to bank levies, so you'll have to use
a Registered Process Server. They cost a little more but they are worth
it because you can levy the bank on the exact day you want.
3) When should
I levy on the bank? In a lot of cases you won't know exactly when
your debtor will have the most money in the account. But in some cases
you may know, particularly if you are aware that the debtor gets a
direct deposit. If you know there is a direct deposit, it's best to
levy around the 2rd or the 16th of the month. Also, if your debtor
is a renter, then factor in when you think the landlord will cash the
debtor's rent check. You want to levy before the rent check goes through.
If the debtor owns a home and pays a mortgage, the mortgage will probably
be due by the 15th of the month. Sometimes it's best to levy around
the 5th of the month. That's probably when the most money is in the
account. And don't worry if the debtor banks at the same bank that
holds his mortgage. The bank still has to honor your levy. It's the
law.
4) Do it. If
you are going to levy the bank on a particular day of the month, then
use a registered process server. They can do it at the exact day and
time that you request. A sheriff will do it when he or she gets around
to it. You can find a registered process server at www.findaprocessserver.com.
Make sure they do bank levies! Some of them just serve simple papers.
A bank levy is a bit more complex for them than a simple serve.
After the bank is levied upon, be patient. The bank will freeze the account
and all monies in it up to the amount of the writ. The bank will hold
the funds for approximately 15 days and then turn it over to the sheriff.
The sheriff will hold it for awhile, and then send it to you.
The debtor does
have a chance to file a "Claim of Exemption," saying that the
money in the account is exempt for this reason or that. This happens
in about 15% of the cases. Don't worry about it until it happens. If
it does happen to you, call the court to see what your options are. Tell
them you want to file an opposition to the claim of exemption, and set
a hearing. Then the debtor will have to appear and explain why the money
is exempt. Usually they have no good reason at all, and the court will
rule in your favor. It's an additional step and a bit of a hassle, but
worth it to follow through.
5) Sit back
and wait some more. Nothing happens quickly when you are dealing
with the government. So, continue to be patient. The sheriff will notify
you by mail how much money was levied upon. Then check will be arriving
in about 30-45 days. Due to budget cuts in local counties, it might
take even longer. Call the sheriff for the specific length of time.
Good Luck!
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