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virginia creditor's rights > creditor's rights > Flashcards

creditor's rights Flashcards

1
Q

detinue

A

prejudgment attachment on property. issued ancillary to suit or to commence suit and establish jurisdiction. plaintiff must post bond

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2
Q

grounds for writ of attachment for detinue

A

D is non-resident or foreign corp

fraudulent conveyance has happened or is about to happen

D is going to move property out of state

D is concealing property

D is leaving state to be domiciled elsewhere

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3
Q

how does detinue lien attach

A

for personal property must be proper levy on personal property in D’s possession. if in possession of 3d party, 3d party must be joined as codefendant in underlying suit.

for real property, officer’s return (document prepared by sheriff in response to court’s writ of attachment) describes property and attachment is served on party in possession

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4
Q

consummated lien

A

an unconsummated prejudgment lien becomes consummated when P wins judgment. consummation gives creditor priority in property against 3d parties back to time of attachment

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5
Q

lis pendens

A

document placed in real estate recording office that indicates real property is subject to litigation - putting potential claimants on notice

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6
Q

procedure for writ of attachment

A

file with judge alleging specific facts supporting grounds for attachment

judge will have ex parte hearing

D has 10 days to challenge lien

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7
Q

when can D quash writ of attachment

A

lien is invalid - legal basis not proper

lien is unsupported - factual error basically, proper ground alleged but was wrong

P is unlikely to prevail in underlying suit

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8
Q

process of prejudgment attachment

A

first, file writ of attachment. then plaintiff posts bond. then judicial determination as to whether to grant writ. then sheriff’s levy of property. then notice of lis pendens. then final judgment

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9
Q

exemptions from writ of attachment

A

exempt property

personal injury claims unless for debt related to treatment of injuries

tenancy by entirety iis exempt - but IRS can enforce tax lien and creditor owed money by husband and wife can attach

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10
Q

homestead exemption

A

$5000 plus $500 for each dependent, though is $10000 for people over 65.

$25,000 real or personal property used as principal residence of claimant or claimant’s dependents

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11
Q

how to get homestead exemption

A

filing homestead deed with clerk of county where real property is located or where claimant resides for personalty. can file after judgment lien attaches

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12
Q

exceptions to homestead exemption

A

cannot be used against:

PMSIs

spousal/child support

intentional tort claims

when waived as to a certain creditor

against IRS

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13
Q

poor debtor’s exemption

A

random list of property exempt from liens

clothes up to $1k, furnishing up to $5k

tools of the trade up to $10k

car up to $6k

heirlooms up to $5k

burial lot up to $5k

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14
Q

garnishing wages

A

can only garnish up to lesser of 25% of wages or excess of 40 times the federal hourly minimum wage

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15
Q

judgments

A

creditor gets judgment when court declares A is liable to C for payment of some sum of money, which gives creditor the right to use the state to take money for them. judgments are paid out by obtaining a lien on property and converting lien into money, usually by levying on property

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16
Q

validity period of judgment

A

valid for 20 years. can be extended by filing motion to extend in court that issued judgment, then is good for another 20 years. can also file new action based on ld judgment

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17
Q

judgment lien in real property

A

arises when judgment is docketed in the real estate recording system and becomes visible. automatically docketed by clerk of court in county where judgment is rendered. judgment from another county is docketed by filing copy of judgment with county clerk where enforcement is sought

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18
Q

what does judgment lien. apply to

A

it is a floating lien applying to all non-exempt real property in the county that automatically attaches to after acquired property. it attaches only to the debtor’s interest in the property and does not attach to tenancy by the entirety

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19
Q

how long does a lien last

A

lien lasts as long as the judgment - must be re-docketed after the 20 year extension. relates back to original docketing if extended before expiration

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20
Q

length of lien for real property sold to third party

A

lien lasts for only 10 years and cannot be extended. must file lis pendens w/in 10 years to enforoce

21
Q

enforcing a lien

A

creditor must bring creditor’s suit ini equity. chancellor appoints commissioner to determine ownership and interests in property and conducts sale of property.

22
Q

right of redemptioon

A

no right of redemption in virginia for real property. once creditor has lien, debtor may not prevent enforcement by paying debt

23
Q

laches

A

no defense of laches against judgment lien creditor

24
Q

priority

A

between competing liens, governed by first in tim, first in right based on time of attachment

25
Q

executing lien on tangible personal property

A

creditor satisfies judgment with writ of execution (writ of fieri facias). lien is created by levy on property be sheriff (public act).

26
Q

writ of fieri facias

A

writ of execution. issued automatically by clerk 21 days after judgment. unless instructed otherwise by creditor. issued to sheriff, instructing him to levy. has return on back of writ. sheriff describes property found and what he did with it. return is given back to court. sheriff must get return back in time listed by court, usually 90 days

27
Q

levy by sheriff requires

A

seizure or observations w/ power to exercise “control or dominion”

copy fo writ served on judgement debtor

property be described in return

28
Q

public sale

A

sheriff conducts sale of item

29
Q

judgment lien creditor tangible property

A

creation - writ of execution by 21 days from judgment, arises on sheriff’s levy

scope - al personal property in jdx

priority - first in time, no notice required

duration - time of levy to time of sale

enforcement - public auction

30
Q

execution of lien on intangible personal property

A

lien commences when writ of execution is delivered to sheriff - applies to all intangibles in commonwealth

31
Q

length of lien on intangible property

A

good for 1 year

32
Q

special protection for certain intangibles

A

purchasers of chose in action (accounts receivable) that take w/o knowledge of writ are protected

judgment debtor’s debtor who pays judgment debtor w/o written notice of lien is protected

33
Q

writ of garnishment

A

issued by clerk when there is live writ of fieri facias. writ is issued to person who owes debtor money from whom creditor is trying to get money - this is garnishee.

return requires garnishee to list property

must serve writ on garnishee with copy to debtor

34
Q

garnishee’s options if servedwrit

A

may admit liabilty and surrender money/property

assert defenses available against debtor, with a trial (w/ jury, if requested)

fail to appear - default judgment

35
Q

limits on garnishment

A

marital bank account - assumed debtor contributed only 1/2 - creditor must prove otherwise

other joint accounts - non debtor bears burden of showing their contributions

cannot garnish negotiable instruments or stock certificates - must be levied

limitations on garnishing wages

36
Q

fraudulent conveyance

A

conveyance made with actual intention to frustrate, hinder, delay creditors

37
Q

voluntary conveyance/constructive fraud

A

conveyance made for less than fair market value while debtor is insolvent or conveyance makes debtor insolvent

38
Q

present creditors

A

claims arose before transfer, can attack fraudulent or voluntary conveyance

39
Q

future creditors

A

claims arose after transfer, can only attack fraudulent conveyance

40
Q

preference

A

transfer of property to satisfy debt that means other creditors cannot satisfy debts out of that property. allowed in VA - can only be attacked under federal bankruptcy law

41
Q

badges of fraud

A

can infer fraudulent intent

renouncing bequest under will

transfers between spouses

transfers in consideration of support

42
Q

mechanic’s liens on real property

A

lien arises by statute and is asserted by filing memorandum of lien in clerk of court’s office where real estate is located w/in 90 days of completion or end of work.

43
Q

memorandum of lien for mechanic’s lien

A

must include:
- names and addresses of owner of property and of claimant

  • amount of verified claim and when payment is due
  • intent to claim lien
  • description of property
  • date from which interest is claimed
  • claimant’s license number

must be mailed to owner of property

44
Q

mechanic’s lien on personal property

A

lien for just and reasonable charges for alterations/repairs.

mechanic must be in possession of property

no recording required

lien against possessor for up to $1,000

45
Q

self help sale mechanic’s lien

A

may do self help sale if value of property is less than $5,000

46
Q

enforcing mechanic’s lien on property worth more than $5,000

A

enforce by bringing creditor’s suit in equity. must join all interest holders as defendants

47
Q

priority of mechanic’s lien

A

default for determining priority is first in time

but priority date is based on date work performed

construction of new building will take priority over lien recorded before commencement of work to extent of building value, but lien before has priority for value of land

48
Q

mechanic’s lien v. mechanic’s lien priority

A

all mechanic’s liens have equal priority.

liens based on labor have priority over liens based on materials

subs have priority over general contractors

49
Q

priority of mechanic’s liens in personalty

A

priority over competing security interests provided for repairs done in ordinary business

priority over other creditors if in possession of property

virginia creditor's rights (1 decks)

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