creditor's rights

Question 1

detinue

Answer 1

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

Question 2

grounds for writ of attachment for detinue

Answer 2

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

Question 3

how does detinue lien attach

Answer 3

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

Question 4

consummated lien

Answer 4

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

Question 5

lis pendens

Answer 5

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

Question 6

procedure for writ of attachment

Answer 6

file with judge alleging specific facts supporting grounds for attachment

judge will have ex parte hearing

D has 10 days to challenge lien

Question 7

when can D quash writ of attachment

Answer 7

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

Question 8

process of prejudgment attachment

Answer 8

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

Question 9

exemptions from writ of attachment

Answer 9

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

Question 10

homestead exemption

Answer 10

$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

Question 11

how to get homestead exemption

Answer 11

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

Question 12

exceptions to homestead exemption

Answer 12

cannot be used against:

PMSIs

spousal/child support

intentional tort claims

when waived as to a certain creditor

against IRS

Question 13

poor debtor’s exemption

Answer 13

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

Question 14

garnishing wages

Answer 14

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

Question 15

judgments

Answer 15

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

Question 16

validity period of judgment

Answer 16

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

Question 17

judgment lien in real property

Answer 17

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

Question 18

what does judgment lien. apply to

Answer 18

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

Question 19

how long does a lien last

Answer 19

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

Question 20

length of lien for real property sold to third party

Answer 20

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

Question 21

enforcing a lien

Answer 21

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

Question 22

right of redemptioon

Answer 22

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

Question 23

laches

Answer 23

no defense of laches against judgment lien creditor

Question 24

priority

Answer 24

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

Question 25

executing lien on tangible personal property

Answer 25

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

Question 26

writ of fieri facias

Answer 26

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

Question 27

levy by sheriff requires

Answer 27

seizure or observations w/ power to exercise "control or dominion" copy fo writ served on judgement debtor property be described in return

Question 28

public sale

Answer 28

sheriff conducts sale of item

Question 29

judgment lien creditor tangible property

Answer 29

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

Question 30

execution of lien on intangible personal property

Answer 30

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

Question 31

length of lien on intangible property

Answer 31

good for 1 year

Question 32

special protection for certain intangibles

Answer 32

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

Question 33

writ of garnishment

Answer 33

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

Question 34

garnishee's options if servedwrit

Answer 34

may admit liabilty and surrender money/property assert defenses available against debtor, with a trial (w/ jury, if requested) fail to appear - default judgment

Question 35

limits on garnishment

Answer 35

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

Question 36

fraudulent conveyance

Answer 36

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

Question 37

voluntary conveyance/constructive fraud

Answer 37

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

Question 38

present creditors

Answer 38

claims arose before transfer, can attack fraudulent or voluntary conveyance

Question 39

future creditors

Answer 39

claims arose after transfer, can only attack fraudulent conveyance

Question 40

preference

Answer 40

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

Question 41

badges of fraud

Answer 41

can infer fraudulent intent renouncing bequest under will transfers between spouses transfers in consideration of support

Question 42

mechanic's liens on real property

Answer 42

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.

Question 43

memorandum of lien for mechanic's lien

Answer 43

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

Question 44

mechanic's lien on personal property

Answer 44

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

Question 45

self help sale mechanic's lien

Answer 45

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

Question 46

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

Answer 46

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

Question 47

priority of mechanic's lien

Answer 47

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

Question 48

mechanic's lien v. mechanic's lien priority

Answer 48

all mechanic's liens have equal priority. liens based on labor have priority over liens based on materials subs have priority over general contractors

Question 49

priority of mechanic's liens in personalty

Answer 49

priority over competing security interests provided for repairs done in ordinary business priority over other creditors if in possession of property