comment to the repealing legislation.)Īlthough certain code sections do exist pertaining to such assignments (i.e., §§ 493.020 and 493.010 of the Code Civ. Thereafter common law assignments are to be used exclusively. The statutory provisions for this alternative method of making an assignment for benefit of creditors were repealed by Statutes 1980, chapter 35, section 3, page 313. Section 3448 of that code provided that the common law assignment for benefit of creditors is expressly recognized and that the statutory method is strictly an alternative to the common law method and is not to be construed as preventing or invalidating a common law assignment. Sections 3449 to 3473 inclusive, of the Civil Code provided a statutory method of making an assignment for benefit of creditors. Code, § 4468.) "The Mexican system was superseded in this state by the adoption of the common law on the 13th of April, 1850 (Acts 1850, page 219)." (People ex rel. Section 22.2 of the Civil Code provides as follows: "The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State." (Added by Stats. comment, cited infra.)įor a period of time in California, both the common law type and a statutory alternative type of such assignment existed at the same time. An assignment for benefit of creditors is a business liquidation device available to an insolvent debtor as an alternative to formal bankruptcy proceedings. History and Nature of Assignment for Benefit of Creditors
#Snipper app trial
The trial court heard and denied the motion. Immediately, plaintiff filed its motion to set aside this default and default judgment and to be allowed to defend against the cross-complaint as the representative of and on behalf of its assignor. Defendant notified plaintiff of the default judgment a few days after its entry. Without notifying plaintiff, defendant had the assignor's default entered and then took default judgment against the assignor on the cross-complaint.
Plaintiff, on its own behalf as assignee only, contested the cross-complaint.Ĭounsel for plaintiff and defendant had numerous discussions and exchanged correspondence concerning service of process on the assignor as a cross-defendant.ĭefendant was finally able to effect service of process of its cross-complaint on the assignor.
Plaintiff-assignee then brought an action for breach of contract against defendant on one of the assets of the estate, namely a written agreement between defendant and the assignor.ĭefendant contested this action, and in turn, filed its cross-complaint against the assignor on the same agreement, naming plaintiff as one of the additional cross-defendants in its capacity as assignee. The validity of this common law assignment for benefit of creditors is not questioned in this appeal. Was relief under section 473 of the Code of Civil Procedure, or other equitable relief, available to plaintiff-assignee and, if so, did the trial court abuse its discretion in denying such relief?Īssignor, Molnar & Associates, Inc., a California corporation, made an assignment for benefit of creditors to plaintiff. Did the plaintiff-assignee and defendant-cross-complainant enter into an agreement that cross-complainant would notify plaintiff of the fact of service of process on the assignor before taking assignor's default and did the trial court make a finding of fact on this issue which was supported by sufficient substantial evidence?ģ. Does the assignee for the benefit of creditors have standing to move to set aside the default and default judgment taken against its assignor when the cross-complaint therein was filed after the assignment became effective?Ģ. Plaintiff appeals from the denial of its motion to set aside the default and default judgment taken by defendant upon its cross-complaint against plaintiff's assignor, Molnar & Associates, Inc.ġ. McDaniel for Defendant, Cross-complainant and Respondent. Snipper for Plaintiff, Cross-defendant and Appellant.Ĭountryman & McDaniel, W. J., and Johnson, J., concurring.) Īrak, Welter & Snipper and Stephen J. (Opinion by Bigelow, J., with Thompson, Acting P. NATIONAL INDEPENDENT BUSINESS ALLIANCE, Defendant, Cross-complainant and Respondent. CREDIT MANAGERS ASSOCIATION OF SOUTHERN CALIFORNIA, Plaintiff, Cross-defendant and Appellant, v.
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