Have a sinking feeling we're still going to get screwed
June 21, 2010 12:07 PM   Subscribe

Sleazy landlord withheld $6000 security deposit illegally, we won our small claims case and filed abstracts of judgment with the county recorder. We just found out one of their other properties is being sold at public auction July 2nd. We are filing a request of notice with the recorder today. What else do we need to do to ensure we are able to claim the money owed us from this sale?

Any help is appreciated, we didn't know we needed to do this until very recently, we thought the abstract of judgment was sufficient. Any walkthrough of the process and what we need to do to be ready would be great. Are there other forms to be filled out? We will get a mailed notice once the property is sold, what do we do to ensure that we can get our money then? How do we submit a claim, etc?

The abstract of judgment was filed about 9 months ago with the same county recorder as where the sale is occurring and the property exists, but the notice we are only submitting today, 11 days before the sale...
posted by Large Marge to Law & Government (10 answers total)
You need a lawyer.
posted by Chocolate Pickle at 12:13 PM on June 21, 2010

It is different from state to state. You don't need a lawyer since you won in small claims but you need to go back to court so someone can explain your state's process to you.
posted by micawber at 12:34 PM on June 21, 2010

Talk to a lawyer. You do need a lawyer.
posted by seventyfour at 12:42 PM on June 21, 2010

Look into filing a mechanic's lien on the property. The property won't be able to be sold without you getting your money due (lien) first.
posted by eatcake at 1:06 PM on June 21, 2010

You need to file an Abstract of Judgement (its paper #EJ-001). Go to the the court building, recorders, office, city hall, or wherever you filed the paperwork/went to court and then ask someone how to do it.

This will effectively put a lien on the property.

Also...if you DIDN'T go to small claims court, you could have received triple your $6K back...at small claims you could have gotten $7500 back(maximum) if you did it right.

Please go to the courthouse, be very nice, and bring the judgment with you. Someone will hold your hand through the entire process.

No you do not need a lawyer if you can do that last step by yourself. Give yourself about 4 hours to get everything done.

Good luck.
posted by hal_c_on at 1:52 PM on June 21, 2010 [1 favorite]

Also...you may want to file a Writ of Execution (paper # EJ-130), which will enable you to get the money out of the landlord's bank account. You need to know the name and address of the bank. This could be obtained pretty easily by checking out the back of your rent checks that YOUR bank is storing for you/sent back to you.

Good luck.
posted by hal_c_on at 1:56 PM on June 21, 2010 [1 favorite]

1) Don't know what jurisdiction you are in. The substance of this answer is only necessarily correct in the jurisdiction in which I practice:

2) Buy an hour of a creditor's rights lawyer's time. Worth it.

3) Filing the judgment or a proper abstract of judgment attaches your judgment as a lien against the property. If landlord were re-financing or selling it you'd get paid out of escrow without further work from you. You'd actually get contacted by escrow to say "we think you are owed $x - do you agree?" and if you do, they'll send you a check.

4) "sold at public auction" means, in 99.9% of cases that it's a foreclosure sale. Doubly likely here since LL kept your $6k - I smell that he/she kept it because their cash flow was so hosed they couldn't have paid ti back if they had to.

What that means is that trust deeds and liens get paid in the order recorded.
Thus, if the purchase money debt which is first recorded is for $100k
you are second in line with your $6k judgment
and the property sells at auction for MORE THAN $106k+costs of the auction sale then you'll get paid by the sheriff

If the property sells for more than $100k+ costs of auction but less than $106k+costs you'll get paid whatever the "extra" is but will get stiffed on the rest as far as the sale goes.

In all cases your judgment against landlord is still valid. As others have said you can execute in a variety of ways. My personal favorite is to garnish tenants so $6k of rent payments go to you, not landlord. For all these things you really do need a lawyer.

hal_c_on seems to know what jurisdiction you are in. His advice is not correct for the two states I practice in. No idea whether they work where you are.

Also, IF it is a foreclosure of a lien filed before yours then eatcake's advice won't work either. Further, be careful filing and claiming liens if you are not sure what you are doing. In my states of practice a "mechanic's lien" does not apply to real property and could not be obtained in your fact pattern in any case. Filing one could, however, get you sued by landlord for "slander of title" which claim would possibly subject you to a damages award in favor of landlord!
Careful - the water is deep here and the current swift. Don't act without solid knowledge.
posted by BrooksCooper at 3:35 PM on June 21, 2010

I'm assuming you are in Cali since your profile lists you as Berkeley.

I agree with BrooksCooper that mechanic's lien doesn't apply here.

Talk to someone at the court you filed. Cali Small Claims Court peeps are very good at being able to detect BS, help people who don't know the system, and just generally geniuses with red tape. Please talk to them.
posted by hal_c_on at 4:53 PM on June 21, 2010

Response by poster: Hi all, a mechnics lien is not applicable in our circumstance as Brooks said, we've in the past had writs of execution issued but these were for bank levies etc. Additionally, we've looked into filing levies on the renters, but that just shifts the issue to the tenants now dealing with the landlord, who was smart enough to rent rooms and so there are multiple small rental agreements, we would have to get them to agree to paying the levies instead of the landlord, which might cause too much hassle as we would then have to take them to court, and would have to do it repeatedly to get our full judgment

Long story short, we have the opportunity to get our money from this foreclosure (it is a foreclosure) instead. We have abstract of judgments filed and filed a notice of request, so presumably we will be notified when the sale is made, but we were hoping for information about what happens next to ensure we can get our money back. We haven't been able to find any information about the process after filing our request for notice.

Contacting a lawyer may be a good idea, but we've already asked a few we know and they haven't been able to provide any information on the specifics of what we need to do. Is there a specific type of lawyer who will know about this? Thanks everyone
posted by Large Marge at 11:44 AM on June 22, 2010

I'd look for a lawyer who specializes in collections. It is worth paying for a consultation. There may be a local (non-profit) referral service run by your state bar, it would be worth seeking it out for a lead.

I would not act without speaking to an attorney and I would not rely upon the knowledge or good will of the court staff. It's the "unknown unknowns," to quote Donald Rumsfeld, that get you.
posted by seventyfour at 9:17 AM on June 23, 2010

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