Let's say I own a $10,000 judgment, as a result of a promissory note which allows attorney fees if it goes to collection. Let's say I hire an attorney who charges $150/hour to enforce the judgment. If the attorney works 10 hours the first year, incurs $500 in expenses, and, at the end of the year, collects $3,000 from the debtor. Does the debtor still owe me $10,000, as follows: $10,000 + 10*$150 + $500 + $1,000 - $3,000 = $10,000 ?
If the answer to the above is yes, then the judgment could become a lifetime cash cow, paying the attorney $150/hour until retirement, and paying me $1,000/year in interest.
A Nolo book says, in listing what costs are allowed, "attorney fees spent on collection efforts, if the judgment called for attorney fees on the basis of a contract or a statute".
The promissory note I have doesn't provide for attorney fees, but it doesn't explicitly mention post judgment attorney fees. When I filled the proposed judgment, I didn't see where I would call for attorney fees post judgment (I am suing without an attorney, thereby, I was told, waiving attorney fees). How does a judgment call for attorney fees ? Is it by the Clerk hand writing "plus attorney fees" or some such on the judgment ? If so, will the Clerk do that for my judgment, given the fact that the attorney fees line is not checked in the proposed judgment amount ? Should I have checked that line and written 0, instead of not checking it at all ?
If the promissory note does not contain an attorney's fee provision, you would not be entitled to collect any attorney fees if you obtained a judgment.
If you represent yourself in pro per as the plaintiff, you would not be entitled to collect attorney's fees if you obtained a judgment.
The typical procedure for obtaining attorney's fees in a judgment is to file a motion for attorney's fees (concurrently with the memorandum of costs) within the same time permitted to file an appeal of the judgment. If there was no attorney's fee motion made, then the judgment does not include attorney's fees and the judgment creditor would not be entitled to recover attorney's fees for post judgment collection efforts either.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Debt Collection Attorney
The Clerk is not going to add anything to, or otherwise change, a judgment which was entered by the court. If you want the judgment changed, you must notice a motion, in the proper format, serve the other side, and appear in court.
Any award of attorney's fees, unless entered pursuant to the court's default schedule, must be approved by the court, i.e., by the judge. You / your attorney will need to file a motion. The amount of fees awarded must be "reasonable." You cannot collect attorney's fees if you are representing yourself in pro per.
Lawsuit / Dispute Attorney
I see only a hypothetical. I respond with some general information, not advice.
When a plaintiff obtains judgment on a contract, the plaintiffs' rights are merged into the judgment. The judgment creditor's rights are thereafter defined by the judgment.
CCP 685.040 contains an anti-dilution rule that provides reasonable attorneys fees can be recovered as a type of cost of enforcement if "the underlying judgment includes an award of attorney's fees to the judgment creditor..." Without this rule a judgment debtor could undermine the public policies that allowed fee-shifting (i.e., a deviation from the "American Rule" whereby everyone pays for his or her own lawyer).
As indicated by another attorney, if the underlying contract did not provide for an award of attorneys' fees and the complaint did not seek them, the judgment should not reflect any attorney fee award. Also, as indicated by another attorney, California's decision in Trope v. Katz is employed con gusto in this state and self-representing individuals, attorneys or not, cannot obtain attorneys' fees for their time representing themselves.
I disagree with a colleague on an arcane point. California civil lawyers (and unfortunately judges too) are conditioned to look to the Rules of Court for the instructions on seeking "costs" and "attorneys' fees." (Great care must be used with these words and whether, for a particular purpose, attorneys' fees will be deemed "costs.") In 1982 or so, however, the Legislature enacted the Enforcement of Judgments Law (EJL). This STATUTE, not the Rules of Court, controls the procedure for recovering costs and attorneys' fees (which may be deemed costs) associated with judgment enforcement.
Under the regime used in the rules, attorneys' fees are claimed and recovered by a motion procedure under the deadlines set in the rules. The deadlines for claiming fees under the EJL are very different, and under the EJL a motion procedure is an option but not required. Fees may simply be claimed in a memorandum. This is where I differ with my colleague. Because the judgment creditor would have to pay fees to bring a motion (and draft a motion), I believe most creditors will simply claim fees by memorandum. Doing so puts the burden on the judgment debtor to pay a fee and bring a motion to tax.
In my own practice I have habitually filed with the cost memo claiming fees a declaration re: fees to support the fee request . This avoids arguments over the fairness of the procedure and may be why my colleague has observed attorneys filing motions with their memos. Alternatively, it may be that the attorneys are skeptical that fees can be claimed by memo alone. Alternatively, they may be lulling the debtor into trap.
If the judgment debtor assumes he or she need not file anything until the deadline for opposing the motion for enforcement fees, he or she will likely makes a huge error. Generally, all challenges to costs claimed by memo are waived if a motion to tax is not timely filed If the debtor misses the deadline for the motion to tax, the attorney can simply take the motion off calendar. Alternatively, the creditor can tell the judge the motion is moot because the motion was not required and the costs/fees were allowed by operation of law when the debtor waived the motion to tax.
How cool is that?
These remarks constitute general information, not legal advice. I am not your attorney unless you have entered a written fee agreement with me on a form provided by me.