Post Judgment Remedies
A Writ of Execution is a Court Order, Issued by the Clerk of the Court that Authorizes a Levy on the Debtor’s Assets to Satisfy the Judgment
Once the creditor knows about the existence and location of some property of the debtor, it may be time to try to enforce the judgment against the debtor’s property by using one of the available court procedures. To actually seize tangible personal property owned by the debtor, a writ of execution must be obtained from the court.
Requesting a Writ of Execution
This document directs the levying officer (marshal, sheriff, or constable) to take certain assets of the debtor to satisfy the judgment. A writ of execution is issued by the clerk of the court and it is good for 180 days from the date of issuance and during this period, any number of enforcement procedures can be requested. The writ of execution must be addressed to the levying officer of a particular county. Therefore, it is necessary to know the name of the county in which the debtor’s employer, bank, business, or other property is located. If the debtor has property in several counties, it may be prudent to enforce your judgment against the property that’s most likely to result in payment. However, it’s always easiest to go against property that is located in the same county where both the creditor and the court are located.
A creditor has the right to claim interest, which begins to run, from the date of the entry of the judgment.
However, if accepting full payment of the face amount of the judgment without asserting a claim for interest that has accumulated since the date of the judgment, a creditor may waive (lose) his right to interest. If the judgment is payable in installments, interest begins to run on each installment only when that installment becomes due, unless the court has ordered otherwise. Interest runs on the entire judgment debt, including any court costs and prejudgment interest that the court has awarded. Where a judgment is partially paid, interest stops running on the portion of the judgment that is paid on the date it is paid, and interest continues to run at the rate of 10 percent per year on the portion of the judgment that is still unpaid. Partial payments are applied first to reimbursement of any allowable costs paid since the judgment, then to payment of the interest that has accumulated, and then to reduce the unpaid balance of the judgment.
A creditor can claim reimbursement of many kinds (but not all kinds) of out-of-pocket expenses that have been paid to public officials in an attempt to enforce the judgment.
Only those expenses (called court costs or costs) that are “reasonable and necessary” can be claimed. However, attorney’s fees are usually not recoverable as “costs.” Courts also do not approve transportation or telephone expenses, or claims for the time spent trying to collect. Costs must be claimed within two years after incurring them. Certain kinds of costs are always recoverable without a special court order. These may be claimed by just completing and filing with the court a form called a memorandum of costs. (In some courts, it is called a cost bill after judgment). Before filing it with the clerk, a creditor must mail a copy to (or personally serve a copy on) the judgment debtor. The date and place of mailing (or personal service) of the copy must be shown on the form that the creditor sent to the debtor and file with the clerk. When the debtor receives the form, he or she has 15 days to request the court to refuse to allow any costs that have not been reasonably and necessarily incurred (or 20 days if the debtor lives out of state). The clerk will not issue the writ of execution until the time for responding to the judgment creditor’s claim expires, plus five days for the mail to arrive.
Instructions to the Levying Officer
After obtaining a writ of execution, a creditor must then prepare and sign written instructions to the levying officer. The instructions inform the levying officer exactly what steps to take to enforce the judgment against the debtor’s property. The instructions tell the levying officer exactly what steps to take to enforce the judgment against the debtor’s property. The instructions must include a description of the property on which the levying officer is to levy execution, and the exact location of the property. The creditor must also pay the levying officer’s estimate of the costs of taking the requested action. The unused balance, if any, will later be refunded.
Sale of Property after Levying Execution
After the levying officer has levied execution on property, the property will normally be sold by the levying officer at a public sale, and the proceeds of sale will normally be paid to the creditor. However, if the particular kind of property is exempt from execution, the property cannot be taken or sold. If it is partially exempt from execution, the debtor may have “first cut” on the proceeds of the sale. For example, the first $1,200 of the debtor’s equity in all of his or her motor vehicles is exempt - meaning that the debtor will receive the first $1,200 of the proceeds of the sale after paying all liens against the vehicle or vehicles. If no one bids more than $1,200 above the debtor’s equity in a vehicle that is taken by the levying officer, the vehicle will be returned to the debtor, but the costs of the levy will be charged against the fee deposit.