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2350-2355 Delinquent Payment Enforcement: Summary Judgement

2350. PURPOSE AND EFFECT OF LIEN CREATED 
Summary judgment provides an additional method of enforcing the collection of unsecured taxes. A judgment lien may be recorded that attaches to all property owned by the assessee. The summary judgment also affords a means of levying through a writ of execution (Rev. & Tax. Code §§3101-3107) and (M-2370 - M-2376).

A recorded judgment creates a lien against bona fide purchasers but only upon the debtor's real property; the levy of a writ of execution is required to bind the debtor's personal property in a manner that is effective against bona fide purchasers (Code Civ. Proc. §674; Miller v. Bank of America, 2-19-48, Ninth Circuit, U.S. Court of Appeals, 166 F. 2d 415, 417-419).

Without such a levy, the lien of the judgment on personal property has no "force, effect, or priority" against bona fide purchasers.

The recorded judgment has the force, effect, and priority of a judgment lien upon all property of the assessee that may be owned by him/her in the county at that time or that may be subsequently acquired by him/her prior to the expiration of the lien (Rev. & Tax. Code §3103).

EXCEPTION: If the judgment debtor sells all personal property encumbered by the recorded judgment, the lien is not valid against a purchaser of the personal property unless he/she has actual knowledge of the lien (Rev. & Tax. Code §3103).

2351. NOTICE OF INTENT TO FILE A CERTIFICATE
A "Notice of Intent to File a Certificate Seeking Summary Judgment" must first be sent to the assessee, by registered or certified mail to his/her last known address, not less than ten (10) days prior to the filing of the tax collector's certificate (Rev. & Tax. Code §3101(a)).

2352. CONTENTS OF NOTICE 
Revenue and Taxation Code section 3101(b) requires the notice to contain the following:

1) The names of all of the assessees;

2) The description of the property assessed;

3) The assessed value of the property;

4) The fact that judgment will be sought in the amount of the tax, penalty, and interest that is unpaid at the time of the filing of the certificate;

5) The fact that, following issuance and recordation of such judgment, additional penalties will continue to accrue at the rate prescribed by law, and any bond premium posted or other costs to enforce the judgment are an added charge; and

6) The fact that a fee, as provided in Government Code section 27361.3, must be paid for the purpose of the recordation of any satisfaction of the judgment lien. Use of form SCO 2-11 is recommended.

2353. PROPERTY NOT SUBJECT TO EXECUTION
The following types of property are not subject to execution (Code Civ. Proc. §699.720):

1) An alcoholic beverage license without the appointment of a receiver under the Code of Civil Procedure section 708.630 (However, a hold can be placed on an on-sale liquor license; see M-2520 - M-2523);

2) An interest of a partner where the partnership is not a judgment debtor;

3) A cause of action that is the subject of a pending action or special proceeding (this does not apply to a cause of action for money or property (Code Civ. Proc. §708.630));

4) A judgment in favor of the judgment debtor prior to the expiration of the time for appeal or prior to the determination of an appeal;

5) A debt (other than earnings) owing and unpaid by a public entity;

6) The loan value of an unmatured life insurance, endowment, or annuity policy;

7) A franchise granted by a public agency;

8) The interest of a trust beneficiary;

9) Any interest that is not vested; and

10) Property in a guardianship or conservatorship estate.

NOTE: These exemptions do not necessarily apply to means of collection other than execution, i.e., seizure and sale under Revenue and Taxation section 2951. For immediate action, control over assets, and the absence of exemption and litigation, seizure under Revenue and Taxation Code section 2951 is generally more advantageous than execution on judgments. However, after the three-year statute of limitations has expired for seizure, execution on judgment can still be effected. See M-2375 for additional exemptions.

2354. FILING OF CERTIFICATE SEEKING SUMMARY JUDGMENT
If any tax, interest, or penalty is not paid by the last day of the month succeeding the delinquency date and not less than ten days following mailing of the Notice of Intent (M-2351 and M-2352), a certificate may be filed (without fee) with the county clerk.

2355. CONTENTS OF CERTIFICATE
The certificate seeking summary judgment must state the following:

1) That a Notice of Intent to file a certificate seeking summary judgment was sent by registered or certified mail to each assessee at his/her last known address not less than ten days prior to the filing of this certificate;

2) That the Notice of Intent set forth the information required, pursuant to (Rev. & Tax. Code §3101(b));

3) The names of all of the assessees (M-2352);

4) The amount for which judgment is sought;

5) The fact that the county has complied with all of the provisions of Part 5, Division 1, Revenue and Taxation Code, in the computation and levy of the tax, penalty, or interest; and

6) The fact that a request was therein made that judgment be issued and entry be made against the named assessee (Rev. & Tax. Code §3101).

Form SCO 2-12 is recommended.