1977, April, Pg. 628. The Charging Order: The Forgotten Stepchild of the U.P.A.

• Author: by Andrew L. Quiat

6 Colo.Law. 628

Colorado Lawyer

1977.

1977, April, Pg. 628.

The Charging Order: The Forgotten Stepchild of the U.P.A

628Vol. 6, No. 4, Pg. 628The Charging Order: The Forgotten Stepchild of the U.P.A.by Andrew L. Quiat[Please see hardcopy for image]Andrew L. Quiat, Denver, practices law with his 89-year-old grandfather, Simon Quiat. Mr. Quiat is also on the Executive Council of the Young Lawyers' Section of the D.B.A.629The Uniform Partnership Act(fn1) has an often overlooked but effective post-judgment remedy which can be effective in placing dollars in your client's hands if properly drawn and implemented by you as your client's advocate. C.R.S. 1973, § 7-60-128 provides that:On due application to a court of competent jurisdiction by any judgment creditor of a partner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment with interest thereon, and may then or later appoint a receiver of his share of the profits and of any other money due or to fall due to him in respect of the partnership and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.

While this device has much historical development and precedent,(fn2) it can be one of the most effective modern statutory remedies to enforce a judgment. Many jurisdictions hold that charging orders on partnership interests are in the nature of an execution and have replaced levys of execution for reaching such interests [Baum v. Baum, 51 Cal. 2d 610, 335 P.2d 481 (1959); Shirk v. Carterbone, 202 Pa. Super. 544, 193 A.2d 664 (1963)]. A judgment creditor need not procure issuance of a writ of execution and service of a notice of garnishment before the proceeding is instituted [Scott v. Platt, 177 Ore. 515, 163 P.2d 293 (1945)].

This article will indicate what steps are necessary to obtain a charging order and will discuss the scope and implementation of the order once granted.

Following judgment, it is necessary to file a Motion and Application to Charge Partnership Property (following the text of this article is a suggested sample of such a motion). The application and motion should be drawn in very broad terms so as to leave you with the maximum availability of drawing a broad order following your hearing.

Notice of HearingIt is necessary to provide Notice of Hearing on Motion and Application to Charge Partnership Property, and at least in the state of Colorado, it is best to have this notice served upon the defendant and to place the return of service in the record of the Court [Phillips v. Phillips, 155

630Colo. 538, 400 P.2d 450 (1964)]. It seems that under Colorado law, notice is adequate if notice of the hearing...