Hello Sterlingo. There is actually a case in California that is
directly on point -- Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369.
In Kertesz, as in your case, the judgment creditor allowed the ten
years to lapse without filing to extend the judgment. The judgment
creditor then brought a NEW action to enforce the judgment, which is
allowed under California law as long as it is brought within 10 years
of the time that the judgment was made "final."
A judgment is not final when it is entered. It is final when the time
to appeal the judgment has expired. After entry of judgment, you have
an absolute maximum of 180 days to appeal it, IF no party has filed a
"Notice of Entry of Judgment." If a party files a Notice of Entry of
Judgment, then you only have 60 days from service of that Notice to
file a Notice of Appeal.
So. In your case, if there was a Notice of Entry of Judgment, then
the judgment became final 60 days after it was served. If there was
no Notice of Entry of Judgment, the judgment became final 180 days
after the judgment was entered. The judgment creditor has 10 years
from the date the judgment became final to file a new legal action, a
whole new complaint, to enforce that judgment.
In either case, since the judgment was entered in June of 1995, 11
years ago, you would think that any new action to enforce that
judgment would be time-barred. But you correctly guessed that your
bankruptcy might toll that statute of limitations. It does.
"Because the commencement of appellants' new action on the judgment
was stayed during the pendency of the automatic stay, the California
statute of limitations was tolled during this period and appellants'
complaint is not time barred." Kertesz v. Ostrovsky (2004) 115
Cal.App.4th 369, 376.
The case is online in Findlaw for Legal Professionals at:
http://caselaw.findlaw.com/data2/californiastatecases/G030640.PDF
or, if you prefer a Word version:
http://caselaw.findlaw.com/data2/californiastatecases/G030640.DOC
You ask about other steps you can take to make sure the judgment can't
be resurrected. There really aren't any. Either it's time-barred or
it isn't. If your bankruptcy was pending for only a few weeks, it's
probably time-barred -- especially if there was a Notice of Entry of
Judgment filed in your case, because that would mean a shorter time
until the judgment was "final."
Finally, I do have a little bit of good news. Even if they can file a
new action to enforce the old action, that will NOT revive the
Abstract of Judgment from the old judgment. They would have to
proceed to judgment with the new action, and then get a NEW Abstract,
with the new case number, and record it just as they did the first
one.
Code of Civil Procedure Section 697.310 governs the real property lien
created by an abstract of judgment. You can view it at
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=697.310-697.410
It states, in pertinent part:
"Unless the money judgment is satisfied or the judgment lien is
released, subject to Section 683.180 (renewal of judgment), a
judgment lien created under this section continues until 10 years
from the date of entry of the judgment."
And under Section 683.180, the only way to maintain your lien is by
recording a certified copy of the application for renewal of the
judgment. Otherwise the lien simply expires.
"If a judgment lien on an interest in real property has
been created pursuant to a money judgment and the judgment is
renewed pursuant to this article, the duration of the judgment lien
is extended until 10 years from the date of the filing of the
application for renewal if, before the expiration of the judgment
lien, a certified copy of the application for renewal is recorded
with the county recorder of the county where the real property
subject to the judgment lien is located."
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=683.110-683.220
(you have to scroll down about 3/4 of the way down the page)
Note that there is nothing here about "reviving" the lien by filing a
new action to enforce the old judgment. You can't. The Abstract of
Judgment has the case number on it. The new action will have a new
case number. There can be no enforcement of the old judgment after
the 10 years are up, period. You can only get a NEW judgment, and
then start ALL OVER with your enforcement, under the new case number.
And as I said above, whether they can file a new action depends on
when the judgment was "final" and how long your bankruptcy was
pending.
I hope this answer has been helpful. If there's anything further you
need, please don't hesitate to ask before rating the question and I'll
be happy to clarify. Best of luck. |
Request for Answer Clarification by
sterlingo-ga
on
24 May 2006 18:04 PDT
Hi Hagan, and thank you for your prompt and well-written analysis. I
had somehow missed Kertesz v. Ostrovsky, an opinion from the Second
Division of the Fourth District. But have you seen Inco Development
Corp. v. Superior Court, also a Fourth District decision, but rendered
by its Second District not long after Kertesz? (find it at
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2005/e036800.html?).
Inco makes me wonder why it could not be argued that the 10-year limit
for enforcing judgments in the Kertesz case (and in my case) is the
same sort of "statute of repose" as in Inco, and thus not the sort of
limitation which warrants the granting of bonus time to a
procrastinating plaintiff? ....Particularly considering that much time
has passed (in my case, 5 years) between the termination of the
automatic stay and the arrival of the 10 year threshold for
enforcement of judgment.
I found it interesting that, rather than address Kertesz v. Ostrovsky
head-on, the Third Division mentioned it but twice, and then only in
passing. Do we maybe have a little internecine disagreement here?
|
Clarification of Answer by
hagan-ga
on
25 May 2006 05:47 PDT
Hello again, and thank you for the nice compliment. I'm afraid that I
find _Inco Development_ readily distinguishable, and I still think
that _Kertesz_ is dispositive in your case.
_Kertesz_ was a case directly addressing the very statute of
limitations that is at issue in your case -- CCP Section 337.5(3).
For that reason alone, it is more relevant to your case than _Inco
Development._ Although you make a good argument that _Inco
Development_ is analogous, since _Kertesz_ is directly on point, the
court is going to apply _Kertesz_.
I actually think that _Kertesz_ is the better-reasoned decision, and
the weight of authority is certainly in favor of tolling. The only
basis for non-tolling in _Inco Development_ was the (in my opinion
strained) distinction between a "statute of limitations" and a
"statute of repose."
A "statute of repose" is intended to provide absolute finality to the
possibility of suit after a specified time has elapsed from the
manufacture of a particular item. Unlike a traditional statute of
limitations, it applies irrespective of time of injury or time of
discovery. It actually begins running before there's any injury at
all -- it starts when the construction or manufacture is complete, not
when it begins to fail. So there is an argument to be made that any
"tolling" provisions that would apply to a normal statute of
limitations should not apply to a statute of repose.
In your case, there is little question that Section 337.5(3) is a
statute of limitations, not one of repose. So all of the normal
tolling provisions apply.
Personally, I don't find it a terribly compelling argument. But
that's the distinction that the _Inco Development_ court made. In
passing, I also find it mildly interesting that no court has yet cited
_Inco Development_ as authority. It's just out there all by itself.
But as I said before, the abstract of judgment is NOT "tolled" or
"revived." After ten years, it's gone. So that's at least a little
bit of good news.
Let me know if I can provide any further clarification -- I'm happy to help.
|
