subject: What To Do With A Restitution Award [print this page] Most judgments begin after an entity or person is harmed in some way, often economically. Criminal restitution orders and judgments start with a crime, when the criminal is instructed to pay money to compensate the victim. My articles are my opinions, and is not legal advice. I'm a judgment referral expert, and not a lawyer. When you ever need a strategy to use or legal advice, please contact an attorney.
I've read that Federal criminal restitution judgments and orders don't terminate until they have been repaid completely, and that if a Federal restitution order isn't paid completely when the defendant debtor dies, their estate may be attached for any unpaid balance. With the goal of collecting money, most criminal restitution judgments are converted eventually to regular court judgments. Civil court judgments eventually expire, yet they are usually renewable.
In some states, restitution judgments may be changed after the restitution order is rendered. Sometimes the (former) criminal judgment debtor or their lawyer can persuade a judge they are broke, and the judge may reduce the amount payable to the creditor victim. Some restitution orders or judgments, don't specify that the defendant judgment debtor pay interest on the restitution award, so interest cannot be collected.
Often, the start of a criminal restitution order or judgment recovery attempt is with a parole or probation department, or some other government entity. When the government entity cannot collect all of what's owed, or the probation is over, or for some other reason; any restitution recovery then will fall to the victim. Most often, the usual method to collect money from a criminal restitution order is through the civil courts.
Criminal restitution judgments are usually "bankruptcy proof". However, for the purpose of recovering money, they are just judgments, because the previous criminal is now a common debtor. Just like regular civil judgments, many criminal restitution orders are never recovered. Restitution judgment collection depends primarily on the available assets of the judgment debtor, and often an attorney or another kind of expert's assistance is required.
In many jurisdictions, for the original creditor victims or their lawyers, restitution orders may be recovered the same way as civil money judgments, including recording an abstract of judgment against the offender. Although the Rules of Criminal Procedure varies in most states, a popular method of making a criminal restitution judgment collectable in typical civil courts, is to ask the criminal court to issue a certified Order for Restitution and Abstract of Judgment. (In California, this is Judicial Council Form CR-110/JV-790.) The abstract of judgment is then taken to a civil court where they open a new civil case file, and a fee is often required.
For judgment enforcers, who have judgments assigned to them; it all depends on which jurisdiction. In some states, criminal restitution judgments aren't assignable, and only a lawyer may collect another person's criminal restitution order.
To assign the rights of a criminal restitution order, the usual and/or proper method is to get a court order, approving that from the criminal court. Certain judgment recovery specialists take a shortcut, and handle criminal restitution judgments as if they were common common money judgments. That is not fully legal in every state. As an example, in California, CCP 680.240 and 673 only applies to civil money judgments. There is no mention in the California Civil Codes for transferring the victim's rights in a restitution order, that has been issued from a criminal division of the Superior Court.
In certain states, only attorneys enforce criminal restitution judgments and orders. Some non-attorney judgment enforcers have successfully recovered criminal restitution judgments in civil court. To do it right, contact the local District Attorney's office for specific information on the way you might proceed. They cannot give you legal advice because even though they are attorneys, they are not your lawyer. However, they can tell you procedurally what courtroom to visit, to submit your motion, asking the court to approve an assignment of the criminal restitution order to you.
Many laws are complicated, and sometimes contradict other laws. One example of a law covering Federal criminal restitution orders is Federal Rule of Civil Procedure 69(a)(1), which mandates that judgments be enforced with writs of execution and "must accord with the procedures of the state where the court is located, to the extent it applies". Another related law is The Federal Debt Collection Procedures Act of 1990 ("FDCPA"), which includes the statement "with the exception of conflicting federal law, the FDCPA provides the exclusive civil procedures to recover a judgment".
The FDCPA also says in 28 USC 3003 (d and f), that it "shall preempt state law to the extent such law is inconsistent". When do Federal criminal restitution judgments expire? An example of an "inconsistent state law" is California Civil Procedure Code section 683.020 (1987), which precludes enforcement of a restitution judgment after ten years from the entry of that judgment. This "inconsistent state law" has been preempted before, an example is at: http://caselaw.findlaw.com/us-9th-circuit/1477403.html
If you're planning to recover a criminal restitution judgment, consult with a lawyer for whatever you aren't sure about. When it comes to criminal restitution judgments and orders, think about also consulting an attorney about what you ARE sure of.
