A DBA Is Not A Corporate Entity

I am not an attorney, I am a judgment referral expert (Judgment Broker). This article is my opinion about adding AKA (Also Known As) debtor names to civil judgments. This article is based on my experience in California. Laws vary in each state, and nothing in any of my articles should ever be considered legal advice.

Sometimes you sue someone, and later they change their name. Sometimes you were in a hurry to sue an someone, and did not have time to discover all the names they are doing business as, or use. Sometimes debtors start a DBA (Doing Business As) businesses, or you later discover this after the judgment was won.

To add a new debtor entity to a judgment, usually requires a complex and expensive new lawsuit and court trial. This is because you have to persuade a judge to add a judgment debtor to a judgment, which requires personal service on all parties, money, luck, lots of evidence, and a full court trial.

However, many times all you must do is add an AKA or a DBA to a judgment. Examples are when you find out the judgment debtor has become married and now uses a different last name, or owns a non-corporate business, has other names they use, or they changed their name. In this case, the court procedure is much easier, you can just get an Affidavit Of Identity.

An Affidavit Of Identity (AOI) does not add new debtors to a judgment, it is only a request to the court to add the AKAs and DBAs of a judgment debtor. An AOI can also be obtained for a corporate business judgment debtor that owns a DBA business name.

As an example, if you sue Barry Clark, and you later find out he uses (and keeps a bank account) under the name of Barry William Davis Clark, or if Barry starts a non-corporate business as a DBA, an AOI can be used.

Note that an AOI can't be used to add Barry's spouse to a judgment, or his Class C corporation, or his business partner. To do that requires a new lawsuit to prove alter-ego, or veil-piercing, fraudulent transfers, etc. AOIs can only add other names that Barry uses to the judgment.

One can get an AOI from the court once, and the updated names will be on the judgment at the courthouse. For the life of the judgment, you must use the corrected names. As an example, if you got a AOI to add the AKA of Barry David William Clark, all future writs, motions, and future paperwork must the format of Barry Clark AKA Barry David William Clark.

As an alternative, one can [make an AOI for a particular bank levy. If Barry has a DBA business called Barry's Burgers, and has a bank account with that fictitious name, one could make an affirmation with some evidence such as a certified copy of a Fictitious Business Name (FBN) certificate, and attach it to the writ for each levy attempt.

In California, to garnish a bank account that is a DBA of the debtor, you must provide a certified copy of their FBN certificate. But what if it has expired? If your circumstances do not fit into one of the exceptions listed under CCP 700.160, then you must obtain a court order to perform the levy. Getting a AOI done first fixes this problem.

To get a court hearing for your AOI, you need to prepare paperwork, file it with the court, and get the debtor served (sometimes by mail) notice of the court hearing.

At the hearing, you can point out that even if the judgment debtor let their FBN lapse, their DBA or FBN should be added to the judgment because it's still an alternative name of the judgment debtor. Also, at a court hearing designed only to add an (AKA, FBN, or DBA) of a debtor, but not take their assets at that time, the judgment debtor is less likely to show up, and you will win your AOI.

Most Often cases, AOI orders are "nun pro tunc orders", meaning "now for then", retroactively altering the debtor name on the judgment as if that was the name they were sued as.

Many small claims court make you use their forms, in California it is form # SC-105. On this form you just ask the court to add Barry William Davis Clark as a DBA of Barry Clark, so this judgment can be recovered. Then you provide any proof you have - for example, a check from the judgment debtor, a document, a database search, etc.

If the court does not provide their own forms, see the text below. I am not an attorney, and this text is just an example, and is not guaranteed to work in your court. It is intended to be a starting reference to modify, for the court and state you are working in:

Your Name and Capacity (Original Judgment Creditor or Assignee Of Record, In Pro Per)

Your address, phone, fax, and email.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

Paul Plaintiff (Plaintiff)

vs

Dan Debtor (Defendant)

CASE NUMBER: case number

DECLARATION, AFFIDAVIT OF IDENTITY, Proposed ORDER, AND POINTS OF AUTHORITIES. (In California: CCP 680.135 and CCP 674.(c)(1))

COMES NOW Paul Plaintiff, in the within matter, and hereby provides the following Declaration in support of an AFFIDAVIT OF IDENTITY:

1) I am the (Original Judgment Creditor or Assignee of Record) in this matter. I am over 18 years of age. I have personal knowledge of the facts herein, except as to those facts stated to be known upon information and belief, and as to those facts, I believe them to be true. If called upon to testify, I could and would competently testify thereto.

2) On March 29, 2010, the court entered a judgment in this action in favor of PAUL PLAINTIFF and against DAN DEBTOR, in the amount of $20,000 principal, plus $150.00 in costs, together with interest at 10 percent per annum, is still outstanding.

3) In reviewing (In Camera) public records from sources supplied to the court (name your evidence sources attached) - it is clear that the debtor's name DAN DEBTOR is also known as DANIAL DEBTOR and DANIAL ZE DEBTOR. Each alias has the same social security number and date of birth.

4) For this reason, in preparation for enforcement of this judgment by actions including filing Writs of Execution from this court, I wish to list on the judgment the name(s) DANIAL DEBTOR and DANIAL ZE DEBTOR as aliases of DAN DEBTOR.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Signed this 8th day of May, 2010 at San Jose, California.

____________________________________________ (Original Judgment Creditor or Assignee Of Record, In Pro Per)

Order Approving Affidavit of Identity.

The affidavit of identity having been considered by the court and good cause appearing, IT IS ORDERED that the name(s) DANIAL DEBTOR and DANIAL ZE DEBTOR as aliases of DAN DEBTOR be added to the Judgment, Writ of Execution, Abstract of Judgment, and other documents necessary to enforce this judgment.

Dated and signed : ________________________

Judge or Commissioner of the Superior Court of California

MEMORANDUM OF POINTS AND AUTHORITIES In California, CCP 680.135 and CCP 674 (1).


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