Creditor's Rights

Question 1

What is a writ of fieri facias?

Answer 1

Used to execute a judgment lien against tangible personal property

Question 2

How to execute a writ of fieri facias

Answer 2

addressed to the sheriff and commands sheriiff to sell goods of the person against whomn the judgment has been obtained.

Question 3

Can a writ of fieri facias be levvied on money or other intangile personal property? If so, how?

Answer 3

Yes. The sherif must request the clerk to issue a garnishment

Question 4

What is garnishment?

Answer 4

A court proceeding in which a creditor asks a court to order a third party who owes an intangible debt (like a salary) to the debtor to turn them over to the creditor.

Question 5

what type of transfers can an existing creditor challenge?

Answer 5

Both (1) fraudulent transfers and (2) voluntary transfers not made for valuable consideration made by insolvent debtor

Question 6

what type of transfers can a future creditor challenge?

Answer 6

Only fraudulent transfers

Question 7

Who bears the burden of establishing transferor’s intent to defraud?

Answer 7

The creditor

Question 8

What are badges of fraud?

Answer 8

(i) transferor retains interest in property; (ii) transfers between family for prior existing debt; (iii) happens after threat of litigation; (iv) lack of (?) gross inadequacy of consideration; (v) transferor retains property; (vi) fraudulent incurrence of indebtedness after conveyance

Question 9

Transfers to bona fide creditors

Answer 9

Can only be set aside if creditor had notice of fraudulent intent

Question 10

Transfers between spouses

Answer 10

Transferor indebted at time of transfer –> Presumed fraudulent

Transferor not indebted –> No presumption, burden still on creditor

Question 11

Transfers not made for valuable consideration

Answer 11

Conveyance, assignment, or transfer of real or personal property not made for valuable consideration by an insolvent transferor

Question 12

What is valuable consideration for the purpose of a transfer not made for valuable consideration

Answer 12

Courts have suggested that any consideration would be sufficient

Question 13

Procedure for fraudulent conveyances

Answer 13

Fine an action to set aside the fraudulent conveyance, thereby creating alien against the fraudulently transferred property

Question 14

What is lis pendens

Answer 14

“litigation pending” - Public act required for a lien attachment on personal or real property to be effective against a bona fide purchaser. Given effect upon final judgment.

Question 15

How long is a judgment valid for?

Answer 15

20 year. And can be extended upon showing of good cause for another twenty years`

Question 16

Can a creditor reach a joint owned bank account?

Answer 16

Yes. THe ownership is in proportion to net contributions unless joint owned by married couple, in which the proportion is equal in the absence of clear and convincing evidence of different intent.