Winter 2013 • Issue 46, page 19
Receiver's Oath Validity
By Davidson, Peter
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Q: The receiver in a case I am involved in was
appointed six months ago. She initially did not file her oath. After
repeated letters from me, she finally did so last month. The oath she
filed is not sworn. Is the oath valid and what is the effect of the
receiver’s late-filed oath?
A: California Code of Civil Procedure § 567 states: “Before
entering upon the duties of a receiver: (a) the receiver must be sworn to
perform the duties faithfully.” There are no reported California cases
interpreting this requirement or explaining the effect of a failure to
comply. Normal statutory construction would indicate that the oath “must”
be taken “before” the receiver commences her duties and that, therefore,
she is not qualified to act, and hence has no authority, until she takes
her oath. In the preceding code section, § 566, dealing with the
requirement that a bond be posted for the ex parte appointment of a
receiver, the legislature also used the words “must” and “before.”
Subsection (b) states: “If a receiver is appointed upon an ex parte
application, the court, before making the order, must require from the
applicant an undertaking in an amount to be fixed by the court… .” There
are a number of California cases that state the failure to require such an
undertaking renders the appointment order void. Sweins vs. Superior
Court, 16 Cal. App. 2d 336 (1936) (“The provisions of that section are
mandatory and the order was therefore void.”) Cases from other states,
with similar statutes, hold that the failure of a receiver to take her
oath deprives the receiver of her authority to act and renders the
receiver’s activities null and void. See Laron vs. Kaley, 138 Ohio
App. 3d 120, 122-123 (2000); Zeigler vs. Trio Realty Group, LLC,
2011 WL 5119101 (2011). There are three ways
for a receiver to give her oath. The receiver can execute her oath before
a notary public and have the notary attest that the receiver signed the
oath; the receiver can execute the oath under penalty of perjury (C.C.P. §
2015.5); or the receiver can execute an unsworn affirmation (C.C.P. §
2015.6). If an affirmation is used, as it appears the receiver in your
case has done, “such affirmation shall commence ‘I solemnly affirm,’ shall
state the substance of the matter required by the oath, the date and place
of execution and shall be subscribed by him.” Id. If it does not
include all of these elements, it may not be a valid affirmation, and the
oath may not be valid. The easiest method, and the method recommended by
“Ask the Receiver” is for the receiver to prepare the oath as a
declaration and execute it under penalty of perjury.
*Peter A. Davidson is a Partner of Ervin
Cohen & Jessup LLP a Beverly Hills Law Firm. His practice includes
representing Receivers and acting as a Receiver in State and Federal
Court.
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