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Cleveland v. Ibrahim

United States District Court, N.D. California

August 26, 2014

ANTOINETTE CLEVELAND, Plaintiff,
v.
AZIZ IBRAHIM, ET AL., Defendants.

ORDER DENYING WITHOUT PREJUDICE MOTION FOR ASSIGNMENT ORDER AND FOR ORDER RESTRAINING JUDGMENT DEBTOR Re: Dkt. No. 11

JOOSEPH C. SPERO, Magistrate Judge.

I. INTRODUCTION

Plaintiff Antoinette Cleveland brings a Motion for Assignment Order and for Order Restraining Judgment Debtor ("Motion"), which was assigned to the undersigned magistrate judge for disposition by the District Court. In the Motion, Plaintiff seeks to enforce a money judgment against Defendants in the amount of $115, 213.32. Defendants' response to the Motion was due on August 22, 2014. No response was filed. The Court finds that the Motion is suitable for determination without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the Motion is DENIED without prejudice.

II. BACKGROUND

In the Motion, Plaintiff asks the Court for an order: 1) directing Defendants to assign to Plaintiff under Cal. Code Civ. Proc. § 708.510 "all or part of a right to payment due or to become due, including, but not limited to, rents, commissions, royalties, payments due from a patent or copyright, insurance policy loan values, accounts receivable, general intangibles, judgments and instruments;" and 2) retraining Defendants under Cal. Code Civ. Proc. § 708.520 "from assigning or otherwise disposing of the right to payment sought to be assigned upon a showing of need."

In support of the Motion, Plaintiff has provided a declaration of counsel stating that: 1) a judgment in the amount of $115, 213.32 was entered against the defendants in this case in the United States District Court for the Northern District of Ohio on June 24, 2005; 2) a Certification of Judgment for Registration in Another District was filed in this Court on September 6, 2012; 3) a Writ of Execution was issued by the Clerk of this Court on April 24, 2013; 4) no payments have been received from Defendants with the exception of a bank account levy, in the amount of $8, 091.38, which was credited against the $34, 409.40 interest amount set forth in the Writ of Execution; 5) the judgment is final and enforcement is not stayed; and 6) "[t]here is a need to restrain the judgment debtor from encumbering, assigning, disposing of or spending the proceeds of the aforementioned accounts receivable and right to payment as the judgment debtor may, in fact, decide to so assign, dispose of or spend the proceeds of the accounts receivable and right to payment, preventing judgment creditor from satisfying her judgment." Declaration of Ross A. Spector.

III. ANALYSIS

The execution of final judgments is governed by Fed. R. Civ. Proc. 69(a)(1), which provides that a federal district court must apply the procedures on execution of a judgment that are followed in the state where the Court is located, "except that any statute of the United States governs to the extent that it is applicable."

In California, a judgment creditor may obtain an assignment order against a judgment debtor pursuant to Cal. Civ. Proc. Code § 708.510(a), which provides, in part, as follows:

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) ...

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