Chapter 5: Judgment liens and attachment liens Flashcards
How do you obtain a judgment lien?
JL attach to RP when it is “docketed” in the appropriate county
Docketing: indexing and recording judgment in county where judgment was entered or transcript of the docket in county where property lies.
No lien if judgment docketed improperly where it would not give notice.
Scope of lien
Effective for 10 years after the judgment and attaches to any property acquired by D in the county during that 10 yrs.
LH must enforce the lien and sell prop w/in 10 yr from date judgment entered.
Generally JL continues in property sold, adverse possession will not destroy a JL
New prop acquired in county where judgment is docketed w/in 10 years of judgment will be subject to lien
Priority for judgment liens
Priority between JL is determined by date of docketing.
Prop acquired after date of docketing will have priority on pro rata basis.
Attachment liens
Attach to RP or PP of debtor during a pending civil case; so it is available to satisfy a judgment.
May seek this for money judgment, alimony/spousal support, or child support. Michael Jorden always supports his Spouse and Children.
Available against D who is: not a resident of state; a foreign corp; a domestic corp, if principals cannot be found in NC after due diligence; a NC resident who intended to defraud, avoid services, is hiding or plans to flee; or a person or domestic corp who intended to defraud and plans to shield property from judgment.
Only available before a judgment has been rendered
Obtaining an attachment lien
P must submit an affidavit explaining entitlement & post a bond at amount set by court, min $200.
Clerk of the court or judge may issue an order of attachment; the seizing executes the order of attachment by levying on the property
Levying on personal property
PP in prop of D, sheriff levies by possession of prop.
If pp in possession of 3rd party, must garnish.
For garnishment: garnishee must get order of attachment;
a summons alerting garnishee that she must file an answer explaining whether she holds D’s property or owes money to D, and notice of levy.
After hearing or trial, ct must enter judgment against garnishee.
Levying on real property
Sheriff doesn’t need to take physical poss of property
May endorse the order of attachment w/ statement that he levies the interest: must describe RP, must certify the levy and names of parties to the clerk of superior ct.
Life of a lien
Lien of PP effective from the time of the levy
RP arises once clerk dockets the levy or earlier if plaintiff has the order of attachment placed on the lis pendens docket as soon as the order is issued
A Defendant may seek to dissolve or discharge by motion; if not then after judgment: if plaintiff wins, the P’s judgment shall be satisfied out of the attached property. If D wins, the D is entitled to the property and all bonds taken for his benefit.
Priority
An attachment lien obtains priority from the date the order is docketed or the levy occurs, priority over all subsequent liens on prop; subordinate to interests that arose before the lien attached
An attachment LH has priority over unperfected security interests.
An attachment LH takes the prop subject to a perfected security interest.
