Sunday, August 7, 2016

Dead Men Don't Sit for Judgment Debtor Exams

Torjesen v. Mansdorf, No. B263377 (D2d4 Jul. 5, 2106)

To collect under California’s Enforcement of Judgments Law, you need to levy before the debtor dies. Otherwise, under Code of Civil Procedure § 686.020, your only recourse is in probate. Here, a creditor obtained a judgement before the debtor died, but did not levy debtor’s property until after he died. Some third party then made a claim to the levied property, which the trial court invalidated under the EJL. That order became final when the third party failed to appeal.

The third party now—two years later—seeks to invalidate the order, claiming that the creditor had no recourse to the EJL for a post-mortem levy. That might be true. But the order was only voidable, not void. While the statutory scheme clearly required the matter to be addressed in probate, it did not fundamentally deprive the trial court of subject matter jurisdiction. So the error was substantive, not jurisdictional. That made it erroneous or voidable, but not so void that it was subject to collateral attack after the judgment became final.


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