Columbia Credit Services, Inc. v. Manuel Rodriguez
Case No: 1188630
Hearing Date: Mon Mar 26, 2018 9:30

Nature of Proceedings: Motion Assignment and Order

CASE: Columbia Credit Services, Inc. v. Manuel Rodriguez,

Case No. 1188630 (Judge Sterne)

HEARING DATE: March 26, 2018

MATTER:

Motion for Assignment Order and Order Restraining Judgment Debtor

ATTORNEYS:

Joseph W. Scalia for assignee of record Sacor Financial, Inc.

Manuel Rodriguez, respondent in pro per

TENTATIVE RULING: Assignee of record Sacor Financial, Inc.’s motion for order assigning fees, commissions, and other payments owed to respondent Manuel Rodriguez is granted, up to $27,817.76, which is the amount of the money judgment and all accrued interest. The motion of Sacor Financial, Inc. for order restraining respondent from encumbering, assigning, transferring, or otherwise disposing of all fees, commissions, and other payments owed to him is granted. This order shall be personally served upon respondent.

BACKGROUND:

This is a credit card collection matter. In July 2000, respondent Manuel Rodriguez applied for and was issued a credit card by MBNA America Bank, N.A. Respondent subsequently defaulted on his credit card payments. On April 8, 2004, MBNA assigned all of its rights and interest in respondent’s credit card account to Hilco Receivables, LLC. On August 22, 2005, Hilco assigned all of its rights and interest in respondent’s credit card account to petitioner Columbia Credit Services, Inc. Columbia subsequently initiated arbitration pursuant to the arbitration provision in the parties’ credit card agreement. On December 15, 2005, the arbitrator entered an award in favor of Columbia and against respondent in the amount of $10,930.77. On December 4, 2008, this court affirmed the arbitration award and entered it as a judgment in the total amount of $14,621.95, including principal of $10,930.77, interest of $2,778.18, attorney’s fees of $520.00, and costs of $393.00. On July 20, 2017, Columbia assigned all of its rights and interest in the judgment to Sacor Financial, Inc.

Sacor now moves the court for an order assigning to it, to the extent necessary to satisfy the judgment in full, respondent’s interest in all fees, commissions, and other payments earned as an independent contractor, and in any funds due and owing to respondent. Sacor also moves for an order restraining respondent from in any way encumbering, assigning, transferring, or spending all fees, commissions, and other payments earned as an independent contractor, and in any funds due and owing to respondent. The balance due on the credit card account is $27,817.76, including the 2008 judgment of $14,621.95 and accrued interest over nine years of $13,195.21.

There is no filed opposition to either motion.

ANALYSIS:

Where a judgment debtor has no property that can be reached by levy under a writ of execution, the court is authorized to issue an order directing the judgment debtor to assign to the judgment creditor all or part of any right to payment that is due the judgment debtor. Code of Civil Procedure Section 708.510 provides:

“(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor . . . all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:

“(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order.

“(2) Rents.

“(3) Commissions.

“(4) Royalties.

“(5) Payments due from a patent or copyright.

“(6) Insurance policy loan value.

“(b) The notice of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.

“(c) Subject to subdivisions (d), (e), and (f), in determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following:

“(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.

“(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support.

“(3) The amount remaining due on the money judgment.

“(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.”

In the present case, judgment was entered on December 4, 2008 in the sum of $14,621.95 in favor of Columbia and against respondent. (Jones Dec., ¶2.) The judgment was assigned to Sacor on July 20, 2017. (Jones Dec., ¶3, Ex. A.) To date, no payments have been received from respondent on the judgment. (Jones Dec., ¶4.) There is now due and owing to Sacor the sum of $27,817.76, which includes the original judgment plus accrued interest at the rate of 10% per annum pursuant to Code of Civil Procedure Section 685.010, subdivision (a). (Ibid.) In an effort to locate other assets belonging to respondent that could be used to satisfy the judgment, Sacor has done extensive investigation, but has been unable to locate any assets that are subject to attachment. (Jones Dec., ¶5.) Respondent is not an employee and therefore the present motion is the only way of executing on the judgment. (Ibid.) Sacor is unaware of any previous assignment order relating to respondent. (Jones Dec., ¶7.)

The court will grant Sacor’s motion for an assignment order. Respondent’s right to fees, commissions, and other payments, up to $27,817.76, which is the amount of the money judgment and all accrued interest, is hereby assigned to Sacor.

Sacor next moves for an order restraining respondent from encumbering, assigning, transferring, or otherwise disposing of fees, commissions, and other payments owed to him. Code of Civil Procedure Section 708.520 provides:

“(a) When an application is made pursuant to Section 708.510 or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.

“(b) The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.

“(c) The court may modify or vacate the order at any time with or without a hearing on such terms as are just.

“(d) The order shall be personally served upon 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 being held in contempt of court.”

Sacor understands that respondent is receiving fees, commissions, and other payments from a business called Eckert Investments for services rendered as an independent contractor. (Jones Dec., ¶6.) Sacor also understands that respondent is being paid in cash by Eckert Investments because there is a lack of documentation of these payments. (Jones Dec., ¶8.) Accordingly, Sacor requests an order restraining respondent from encumbering, assigning, disposing of, or otherwise spending all of the fees, commissions, and other payments owed to him by Eckert Investments or any other entity or person.

The court will grant Sacor’s request for a restraining order. The court finds that there is a need for an order restraining respondent from spending all payments he may be receiving as an independent contractor. Pursuant to Code of Civil Procedure Section 708.520, subdivision (d), this order shall be personally served upon respondent and shall inform him that failure to comply with the order may subject him to being held in contempt of court.