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volume 18
www.californiacivilprocedure.com
Chapter 14. ENFORCEMENT OF JUDGMENT
California Codes -List of All Titles
California Code of Civil Procedure
Basic California Informant of Judgment provisions
CODE OF CIVIL PROCEDURE SECTION 717.010
717.010. A judgment not otherwise enforceable pursuant to this
title may be enforced by personally serving a certified copy of the
judgment on the person required to obey it and invoking the power of
the court to punish for contempt.
DIVISION 2. ENFORCEMENT OF MONEY JUDGMENTS
CHAPTER 1. GENERAL PROVISIONS
Article 1. Property Subject to Enforcement of Money
Judgment ................................... 695.010-695.070
Article 2. Amount to Satisfy Money Judgment ........... 695.210-695.221
CHAPTER 2. LIENS
Article 1. General Provisions ......................... 697.010-697.060
Article 2. Judgment Lien on Real Property ............. 697.310-697.410
Article 3. Judgment Lien on Personal Property ......... 697.510-697.670
Article 4. Execution Lien ............................. 697.710-697.750
Article 5. Other Liens Created by Enforcement Process 697.910-697.920
CHAPTER 3. EXECUTION
Article 1. General Provisions ......................... 699.010-699.090
Article 2. Writ of Execution and Notice of Levy ....... 699.510-699.560
Article 3. Property Subject to Execution .............. 699.710-699.720
Article 4. Methods of Levy ............................ 700.010-700.200
Article 5. Duties and Liabilities of Third Persons
After Levy ................................. 701.010-701.070
Article 6. Sale and Collection ........................ 701.510-701.680
Article 7. Distribution of Proceeds of Sale or
Collection ................................. 701.810-701.830
DIVISION 3. ENFORCEMENT OF NONMONEY JUDGMENTS
CHAPTER 1. GENERAL PROVISIONS .......................... 712.010-712.070
CHAPTER 2. JUDGMENT FOR POSSESSION OF PERSONAL PROPERTY 714.010-714.030
CHAPTER 3. JUDGMENT FOR POSSESSION OF REAL PROPERTY .... 715.010-715.050
CHAPTER 4. JUDGMENT FOR SALE OF PROPERTY ............... 716.010-716.030
CHAPTER 5. OTHER JUDGMENTS ..................................... 717.010
TITLE 11. SISTER STATE AND FOREIGN MONEY--JUDGMENTS
CHAPTER 1. SISTER STATE MONEY--JUDGMENTS ................ 1710.10-1710.65
CHAPTER 2. FOREIGN MONEY--JUDGMENTS ......................... 1713-1713.8
TITLE 11.5. COURT-RELATED ALTERNATIVE DISPUTE RESOLUTION
PROCESSES .......................................... 1730-1743
TITLE 11.6. CIVIL ACTION MEDIATION .......................... 1775-1775.15
TITLE 11.7. RECOVERY OF PREFERENCES AND EXEMPT PROPERTY IN AN
ASSIGNMENT FOR THE BENEFIT OF CREDITORS ............ 1800-1802
TITLE 13. INSPECTION WARRANTS ............................ 1822.50-1822.60
TITLE 7. UNIFORM FEDERAL LIEN REGISTRATION ACT ................. 2100-2107
Federal Provisions:
Rule 69. Execution
(a) In General.
Process to enforce a judgment for the payment of money
shall be a writ of execution, unless the court
directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a
judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and
procedure of the state in which the district court is held, existing at the time the remedy is sought,
except that any statute of the United States governs to the extent that it is applicable. In aid of the
judgment or execution, the judgment creditor or a successor in interest when that interest appears of
record, may obtain discovery from any person, including the judgment debtor, in the manner provided
in these rules or in the manner provided by the practice of the state in which the district court is held.
(b) Against Certain Public Officers.
When a judgment has been entered against a collector or other officer of revenue under the
circumstances stated in Title 28, U.S.C., § 2006, or against an officer of Congress in an action
mentioned in the Act of March 3, 1875, ch. 130, § 8 (18 Stat. 401), U.S.C., Title 2, § 118, and when the
court has given the certificate of probable cause for the officer's act as provided in those statutes,
execution shall not issue against the officer or the officer's property but the final judgment shall be
satisfied as provided in such statutes.
Ed. Note; Note That Rule 69 applies to a " judgment for the payment of money"
Query: is An Order for restitution a
" judgment for the payment of money"
with in the meaning of Rule 69
LII
Notes To Rule 69
Rule 70. Judgment for Specific Acts; Vesting Title
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or
to perform any other specific act and the party fails to comply within the time specified, the court may
direct the act to be done at the cost of the disobedient party by some other person appointed by the
court and the act when so done has like effect as if done by the party. On application of the party
entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property
of the disobedient party to compel obedience to the judgment. The court may also in proper cases
adjudge the party in contempt. If real or personal property is within the district, the court in lieu of
directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in
others and such judgment has the effect of a conveyance executed in due form of law. When any order
or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ
of execution or assistance upon application to the clerk.
FEDERAL PRACTICE AND PROCEDURE by
CHARLES ALAN WRIGHT
Charles Alan Wright Chair in Federal Courts
The University of Texas
ARTHUR R. MILLER
Bruce Bromley Professor of Law, Harvard University
and RICHARD L. MARCUS
Distinguished Professor of Law,
University of California Hastings College of the Law St. Paul, Minn.
WEST PUBLISHING CO. 1997
(CITE AS: Wright, Miller & Marcus, Federal Practice and
Procedure: Civil 2d Section____
Annotations/Footnotes
Ch.
9 § 3012 page 152
Rule
69
Town
of
of mandamus for the collection of judgments are "proceedings
supplementary
to and in aid of a judgment" within Rule 69. Couch v. City of
D.C.Ga.1962, 203 F.Supp. 897.
22.
Contempt
Contracting
firm which did not pay court-ordered amount into union trust
fund for benefit was properly cited for contempt. even though there was
an
alternative method of enforcing the order through issuance of a writ of
execution. Laborers' Pension Fund v. Dirty Work Unlimited, Inc., C.A.7th,
1990. 919 F.2d 491.
When
the bankruptcy trustee filed a motion, under the Civil
Practice Act N.Y. 1 505. subdivision 4 providing for the enforcement
without execution of a judgment directing the payment of money to
the officer of the court, to commit defendant for contempt for
nonpayment of the judgment, the denial of the motion was a proper
exercise of discretion. Keesing v. Solomon, CA.2d. 1944. 142 F.2d
1005.
Even
though the security deed grantor's judgment creditor and not
the grantee to whom the rents were assigned was entitled tinder Georgia
law
to the rents paid to the grantee upon giving the restraining notice, when
the application of New York law would produce a different result and the
law
of Georgia was somewhat misty regarding the issue. the grantee and the
grantor would not be declared in contempt of court for having violated the
restraining notice. Ivor B. Clark Co. v. Hogan, D.C.N.Y.1968.
296 F.Supp. 398,
order modified D.C.N.Y.1969, 296 F.Supp. 40 7.
Garnishee
summons issued by the District Court of Hawaii to satisfy a
judgment entered by the District Court of Alaska directing the garnishees
to hold and secure all the debts owed to the judgment debtor and providing
that the failure to hold and secure until further order of the court
contained
a proper reference to the usable contempt powers of the court to
punish the
intentional disregard of the garnishee summons. Juneau Spruce Corp. v.
International
Longshoremen's & Warehousemen's
But
see
Defendant
could be punished for contempt for failing to make payments in
accord with a consent order under the Land Sales Disclosure Act even though
judgment, but an equitable remedy imposed under a federal statute to
protect the public interest. Pierce v. Vision Investments, Inc.,
C.A.5th.
1986. 779 F.2d 302.
Rule
69's requirement that procedure for execution of judgment for
payment of money be in accordance with state practice had no
application to petition of National Labor Relations Board that employer
and its chief officer and stockholder be held in contempt for violation of
judgment enforcing cease and desist order which required employer to
make available various records necessarv to determine the amount of
back
pay due employees who had been laid off to discourage support for
union. N.L.R.B. v. Trans Ocean Export Packing, Inc., C.A.9th, 1973, 473 F.2d
612.
It was
a proper use of the district court's authority to proceed with a contempt
proceeding against employer for its failure to comply with a judgment of the
court
requiring it to satisfy its obligation for past‑due contributions to an
employee trust
fund. Robbins v. Labor Transp. Corp., D.C.I11.1984, 599 F.Supp. 705.
page 153
To
enforce the usual judgment for payment of money. the ordinary process is a writ
of execution and not a proceeding for contempt. However, if the judgment for
payment of money
represents a sum payable because of the defendant's failure to perform a
public
obligation imposed by statute, it is permissible to vindicate the public policy
embodied
in the statute by instituting a proceeding for civil or criminal
contempt.
King v. Greenblatt, D.C.Mass.1980, 489 F.Supp. 105.
23. Receiver
Under an
the availability of the remedy does not depend on the absence of a legal
remedy.
Edmonston v. Sisk, C.A.10th,1946,156 F.2d 300.
24. As much authority
Absent controlling federal statutes, a federal district
court has the same
authority to aid judgment creditors as that provided to state courts under local
law.
Duchek v. Jacobi, C.A.9th, 1981, 646 F.2d 415.
A district court has the same authority to aid judgment
creditors in supplementary
proceedings as that which is provided to state courts under local law in absence
of
controlling federal statute.
certiorari denied 100 S.Ct. 76, 444 U.S. 838, 62 L.Ed.2d 50.
The district court has the same authority to aid judgment
creditors in supplementary
proceedings of execution as courts of the state in which it sits, in the absence
of a
controlling federal statute. H.H. Robertson Co. v. U.S. DiCarlo General
Contractors, Inc.,
D.C.Mo.1992, 789 F.Supp. 998, affirmed C.A.8th, 1993, 994 F.2d 476, certiorari
denied
114 S.Ct. 621, 510
25. Interest in property
State law applies in determining whether property is
tranaferrable or subject to a levy of
execution and sale. Hayes v. Schaefer, C.A.6th, 1968, 399 F.2d 300.
In proceeding to execute on judgment, district court is
bound to follow state law in
determining whether defendant has an interest in property which is subject to
execution.
In the absence of a federal statute providing otherwise, property which is
exempt from
attachment under state law is not subject attachment in execution of a federal
judgment.
Schreiber v. Kellogg, D.C.Pa.1994, 849 F.Supp. 382.
26. Successor corporation
In determining the liability of the corporation's
successor for the judgment debt of the
corporation,
Christiansen v. Mechanical Contractors Bid Depository, C.A.10th, 1968, 404
F.2d 324.
27. Existence of lien
See 28 U.S.C.A.§ 1962.
In determining whether a lien arose from proceedings on or
in aid of a judgment, the
district court, pursuant to Rule 69 was required to follow the practice and
procedure
existing at the time the remedy was sought in the state in which the district
court was held.
State statute providing that a judgment becomes dormant
after five years and ceases
to operate as a lien applies to a judgment of the federal court in that state.
Application of rule
LICHTENSTEIN v. LICHTENSTEIN Cite as 425 F.2d 1111
(1979)
No. 17915.
United States Court of Appeals, Third Circuit,
Civil contempt proceedings. The
United States District Court for the Eastern
District of Pennsylvania, Harold K. Wood, J., found alleged contemnor to be
in
contempt for failure to perform tlutics undertaken in agreement of settlement of
litigation.
The alleged contemnor appealed. The Court of Appeals, Stale y•, Circuit
Judge,
held that where there was no specific order of trial court which required
alleged
contemnor to pay sum of money to escrow agent but order merely provided
means
by which his liability under settlement agreement for moneys allegedly
wrongfully
paid to him by corporation was to be determined and order
was dependent upon
prospective extrajudicial determination of liability, alleged
contemnor could not be
held in contempt for refusal to pay sum ..f money to the escrow
agent. Reversed.
1. Contempt (key) 20
"Civil contempt" is committed when a person
violates an order of court which requires
that person in specific and definite language to do or refrain from doing an
act or series of acts.
See publication Words
and Phrases fur other judicial constructions and definitions
Contempt «25
Where contempt of court consists of refusal to pay sum of
money, specificity and
definiteness requires art minimum that court order exists which requires
that the
contemnor perform the act of payment of a specific
sum.
3. Contempt P20
A court order which provides for prospective extrajudicial
determination of liability
lacks requisites of specificity and definiteness to sustain finding of contempt
for
failure to perform act of payment.
4. Contempt a20
Where there was no specific order of trial
court which required alleged contemnor |
to pay sum of money to escrow agent but rather merely provided means by which
his
liability under settlement agreement for moneys allegedly wrongfully paid to him
by
corporation was to be determined and order was dependent upon prospective
extrajudicial
determination of liability, alleged contemnor could not be held in contempt for
refusal to pay sum of money to the escrow agent.
5. Contempt C~68
In civil contempt proceedings, trial court may, in its
discretion, award expenses, costs,
and fees to the petitioner but these items are restricted to reasonable amounts
incurred in
prosecuting the petition and some basis for their award must appear in the
record.
6. Contempt at38
Where record in contempt proceeding was
devoid of evidence by which
reasonableness of award of expenses, costs and fees to petitioner could be
tested,
trial court abused its discretion by awarding the items.
PIERCE v. VISION INVESTMENTS, INC. Cite as 779 F.2d 302 (5th Cir. 1986)
303
Opinion vacated, and case remanded.
1. Constitutional Law e‑83(3)
Consent order, entered to enforce Interstate Land Sales
Full Disclosure Act, under which owners
of family corporations were permanently enjoined from engaging in activities
considered unlawful
and were required to make payments to purchasers who had lost their property
upon foreclosure,
was not a "money judgment" or "debt," within meaning of
federal prohibition against
imprisonment for debt [28 U.S. C.A. § 2007(a)], but rather, was an equitable
decree and an
injunction in the public interest, and was therefore properly enforceable by
judgment of civil
contempt. Interstate Land Sales Full Disclosure Act, §§ 1402‑1422, as
amended, 15 U.S.C.A. §§ 1701‑1720.
See publication Words and Phrases for other judicial
constructions and definitions.
2. Constitutional Law 83(3)
Texas constitutional prohibition against imprisonment for debt [Vernon's Ann.Texas Const. Art. 1, § 18] did not prohibit use of imprisonment as appropriate contempt sanction for failing to make payments in accordance with court order entered to enforce Interstate Land Sales Full Disclosure Act unless contemner demonstrated inability to pay. Interstate Land Sales Full Disclosure Act, §§ 1402‑1422, as amended, 15 U.S.C.A. §§ 1701‑1720; 28 U.S.C.A. § 2007(a).
(Opinion July 19, 1985, 5th Cir., 753 F.2d 539)
Plaintiff‑appellee Secretary of Housing and Urban Development (Secretary) seeks a rehearing, with a suggestion for rehearing en bane, of our original panel opinion in this case, Pierce v. Vision Investments, Inc., 765 F.2d 539 (5th Cir.1985). The Secretary contends that we erred in holding that civil contempt was nit an available remedy for violation of a consent order entered in a suit brought under the Interstate Land Sales Full Disclosure Act. We find the argument of the Secretary persuasive; therefore, we grant panel rehearing, vacate our previous opinion, and submit the following opinion. The grant of panel rehearing moots the suggestion for rehearing en bane.
In this appeal from a civil contempt judgment for failure to comply with the payment terms of a consent order entered to enforce the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701‑1720, the contemners urge us to apply the prohibition against imprisonment for debt of 28 U.S.C. § 2007(a) and Tex.Const. art. I, § 18. Finding that the district court's use of contempt sanctions to enforce the payment terms of the consent order does not fall within the scope of the section 2007(a) prohibition and that Texas law does not prohibit the use of contempt in this case, we hold that a contempt judgment is available to enforce the Interstate Land Sales Full Disclosure Act and remand the case to the district court for a hearing to determine the contemner's ability to comply with the consent order.
I. FACTS AND
PROCEDURAL HISTORY
Appeal from the United States District The Secretary brought a suit to enforce
Court for the Western District of
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