Thursday, May 30, 2013

Hey, can I get that back?

Appellate Specialist Mark Schaeffer (of Nemecek-Cole) provides the following note on a case of interest published yesterday:
If a debtor files an appeal and posts an appeal bond after a judgment creditor has levied on the debtor’s bank account via an executed writ of execution, does the trial court have authority to order the creditor to return the money to the debtor?

The Second Appellate District, Division Three, answered the question in the negative.  (ADIR International, LLC v. Superior Court (2013) __ Cal.App.4th __.) 

So, debtors beware - file appeal bonds before a levy.  If a levy is in process, but has not been completed, the appellate court stated that the debtor should have sought an order recalling and/or quashing the writ of execution and releasing the lien.

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