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Affidavit of identity in California judgment collections

The topic of this blog post is a brief discussion of the use of an affidavit of identity in California. The affidavit of identity allows a judgment creditor in California to collect a judgment against a judgment debtor who uses several aliases without having to file a motion to amend the judgment, and without notice or a hearing. However, it can only be used in certain specified situations which are detailed in the California Code of Civil Procedure.

Proper use of an affidavit of identity is critical to effective judgment recovery in California. I have collected on several California judgments with the use of an affidavit of identity, and have never had an application for an affidavit of identity rejected.   Many counties in California including Los Angeles and Orange counties, have a specific local form which is used as the application for an affidavit of identity, and in some cases, the order approving the application as well.

If the judgment creditor can prove to the Court that a judgment debtor(s) are known by additional names which were not listed on the judgment, they can request that the Court issue an abstract of judgment and/or a writ of execution listing the additional names, without notice or a hearing.

This avoids the time and expense of filing a motion to amend the judgment which would require giving advance notice to the judgment debtor, thus alerting them that the judgment creditor is actively seeking to collect on the unpaid judgment.

Note that this procedure CANNOT be used in other ways such as attempting to collect against someone who was not listed on the judgment, nor can it be used to collect against any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor.

The relevant section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 674 (c)(1) which states that,

“The abstract of judgment shall be certified in the name of the judgment debtor as listed on the judgment and may also include the additional name or names by which the judgment debtor is known as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the abstract of judgment. Prior to the clerk of the court certifying an abstract of judgment containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the certification of the abstract of judgment with the additional name or names. (2) The remedies provided in Section 697.410 apply to a recorded abstract of a money judgment based upon an affidavit of identity that appears to create a judgment lien on real property of a person who is not the judgment debtor. ”

Affidavit of identity is defined in Code of Civil Procedure § 680.135 which states that,

“Affidavit of Identity” means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor’s additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor. ” (Emphasis added.)

The California code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 674 (c)(1) which states that,

“The abstract of judgment shall be certified in the name of the judgment debtor as listed on the judgment and may also include the additional name or names by which the judgment debtor is known as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the abstract of judgment. Prior to the clerk of the court certifying an abstract of judgment containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the certification of the abstract of judgment with the additional name or names. (2) The remedies provided in Section 697.410 apply to a recorded abstract of a money judgment based upon an affidavit of identity that appears to create a judgment lien on real property of a person who is not the judgment debtor. ”

Affidavit of identity is defined in Code of Civil Procedure § 680.135 which states that,

“Affidavit of Identity” means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor’s additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor.”

The California code section that authorizes the issuance of a writ of execution listing additional names is Code of Civil Procedure § 699.510 (c) which states that,

(1)“The writ of execution shall be issued in the name of the judgment debtor as listed on the judgment, except that the judgment creditor shall omit the name of a judgment debtor from the application for a writ of execution if the liability of that judgment debtor has ceased with regard to the judgment, including either of the following occurrences:

(A) The judgment debtor has obtained a discharge of the judgment pursuant to Title 11 of the United States Code and notice thereof has been filed with the court.

(B) The judgment creditor files an acknowledgment of satisfaction of judgment with regard to the judgment debtor pursuant to Chapter 1 (commencing with Section 724.010) of Division 5.”

(2) The writ of execution shall include the additional name or names, and the type of legal entity, by which the judgment debtor is known, as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the writ of execution. Prior to the clerk of the court issuing a writ of execution containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the issuance of the writ of execution with the additional name or names.

Proper use of the affidavit of identity can make the difference between collecting on an unpaid  judgment, or not collecting on an unpaid judgment. Judgment recovery professionals in the State of California will certainly agree with the previous statement.

Attorneys or parties in California that would like to view a portion of an 8 page sample affidavit of of identity and order to issue a writ of execution and an affidavit of identity and order to issue an abstract of judgment containing any additional name(s) by which the judgment debtor is known including brief instructions, citations to the statutory authority along with a sample declaration and proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995 and has collected unpaid California judgments since 1992.

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

The author’s website: http://www.legaldocspro.net

View over 300 sample documents sold by the author: http://www.scribd.com/legaldocspro

Copyright 2012 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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