Enforcement of Judgments Flashcards
This may be where bulk of creditor's rights will be
what is tangible personal property?
property that you can touch or feel but is not real estate (ie furniture, cars, clothing, cash in your wallet)
what is intangible personal property?
property that you cannot touch or feel (ie bank accounts)
what is a “Writ of Fieri Facias”?
also called a “Writ of Execution”. it gives the creditor the right to execute on personal property of the debtor
what is the first step after getting a judgment that you want to enforce against personal property?
apply for a writ of execution on the judgment, describing the property to attach, and to give it to sheriff
what is step 2 for reaching tangible pp?
after the sheriff gets the writ:
sheriff goes to the address directed by the writ and attempts to levy on the tangible pp of the judgment debtor
act of levy creates a lien on tangible pp
what is step 3 for reaching tangible pp?
sheriff would then sell the property at a public auction. if the creditor wants the sheriff to seize the property and put it up for sale, the creditor must post a bond (the purpose of the bond is to protect the sheriff and any purchaser at the sheriff’s sale from claims of any person over the property (ie if judgment is on my neighbor’s property, but i parked my car there and the sheriff accidentally takes it, and i now want to sue him for conversion, the bond will protect him from any loss as a result)
how does the sheriff reach intangible personal property?
after getting the writ, the sheriff can serve that upon a third party who holds or owes the debtor’s funds (ie the debtor’s bank or employer); this is called a garnishment
how long is the lien enforced by the garnishment good for and where is it good for?
1 year; good for anywhere in the Commonwealth
what creates the lien when you are dealing with intangible pp?
the writ of execution does (not the garnishment); the garnishment is used to enforce the lien
what is a debtor interrogatory?
creditor can subpoena the debtor to appear before the court under oath and answer questions about what property the debtor owns
what is this interrogatory conditioned upon?
a writ of execution being issued
what happens if the debtor discloses owning anything?
the judge can order the debtor to surrender the property to be sold at a sheriff’s sale
what court can these interrogatories be done in?
in gdc or cc
how does one enforce judgments against real estate?
the judgment becomes a lien from the time of docketing (recording) in in the cc clerk’s office where the land is situated
the docketing of the judgment creates the lien and establishes priority of the liens
what if the real property straddles multiple districts?
the creditor must docket the judgment separately in each place the debtor’s land is situated
what happens when you take the abstract of judgment from the cc of one jurisdiction and docket it in another jurisdiction?
it will create a lien on any property the debtor owns in the subsequent jurisdiction
what may a creditor with a lien on real estate ask the court to do?
enforce the judgment and sell the real estate to satisfy the lien
what must the creditor prove for the court to authorize to order the land to be sold?
that any income (ie profits and rents) from the real estate will fail to satisfy the judgment within 5 years
what if the creditor does not prove this?
the court will not order the sale and will instead order the rents and profits to be paid into the court and distributed to the creditor
can the creditor reach debtor’s interest in a tenancy by entirety
no; it is protected from liens due to claims of a creditor of just one spouse
what happens if the parties divorce?
tenancy is covered to a tenancy in common, which makes the interest of the debtor spouse reachable by the creditor
what about other interests in land?
interest of one spouse or non-spouse owner can be reached by creditor of just that person in the following tenancies: tic, jt, jointly inherited property, and life estate
what is the UEFJA?
Uniform Enforcement of Foreign Judgments Act
what does the UEFJA do?
foreign judgments from any state or federal court are entitled to full faith and credit in VA
how are foreign judgments enforced?
by filing a property authenticated copy of the judgment in any VA CC. Out of state judgments Must be filed in the CC regardless of dollar amount
can a debtor attack the validity of a foreign judgment?
yes on any grounds that could be used to attack the validity of a Virginia court judgment
