Enforcement of Judgment and Deed of Trust

A final judgment takes place when the court has made up it’s mind on a particular lawsuit. This will resolve the mishaps that caused the lawsuit to be filed, and will determine the rights and/or penalties of each party involved in the suit.

In a criminal lawsuit, the judgment will be forced by the gov’t. This more often than not results in one party being sentenced, which will be strongly enforced. Defendants can be ordered by the court to be placed on probation for a certain period of time, pay a fine(s), or can end up in jail or prison.

Vice-versa in a civil lawsuit, the parties of the lawsuit will be held responsible for enforcement of the judgment. When one party involved in the suit does not comply with court orders, it is up to the opposing party to seek assistance, that is, obtain the agreement settled by the court.

Enforcement of judgment occurs when a agreement (money judgment or order) is not paid. Even though most people who abide by the agreement issued by the court, there are some people out there that ignore curt orders and refuse to pay the fine. When the person responsible does not pay their fees, enforcement of the judgment is required.

Money judgment against property of debtor:

Through a process generally known as “execution,” the creditor in which holds the judgment will enforce a money judgment on the borrower. These judgments are enforceable for a certain set period of time.

The beginning of the process begins with a writ, followed by the judgment. The writ orders a levying officer to seize specific property of the borrower, and, upon legal notices and advertisements of sale, sell the property at auction (generally at the county courthouse) to the highest bidder. The proceeds of the auction will go to the costs of the levying officer and any liens against the property. If the sale does not produce enough to cover the balance owed on the mortgage, the creditor (in certain cases) may pursue other property of the debtor.

In some cases, the creditor will bid at auction and take the property back if there are no other bidders, or the bid prices are too low.

Prior to the sell of the property, the levying officer cannot offer potential buyers access to the property being auctioned off for any reason including property inspection prior to the sale date. Any third party who wishes to purchase the property generally will have to pay the full amount in cash at the time of sale (or in some cases a deposit can be made with the entire amount paid shortly after) and, in some cases, may be responsible for the eviction of any tenants still living in the home. Also, in some jurisdiction, the debtor may be able to buy back the property from the purchaser for a short period of time after the sale is final.

In many cases, a judgment debtor is owed a debt by another. If the judgment debtor is a wage earner, the employer owes her wages. If the judgment debtor has a checking account, the bank owes her the amount of funds credited to the account. If the judgment debtor has a tort judgment against a tortfeasor, the tortfeasor owes the judgment debtor the amount of the tort judgment. If the judgment debtor is a manufacturer, the purchasers of its products owe for goods purchased on credit. A judgment creditor may satisfy its judgment by obtaining a writ of garnishment ordering the relevant third party (e.g. the judgment debtor’s employer) to pay the judgment creditor.  Garnishment procedure varies among states.

For borrowers that have interest in real property, the creditor pursuing the judgment may try and obtain a lien against that property by recording legitimate evidence in the accurate land recorder’s office. This type of lien is generally referred to as a “judgment lien.” If they have several interests in real property in that county, the lien may attach to all real property located within the county.

Some state laws can protect an individual from the enforcement of a money judgment. Property that has such protections is known as exempt property. Federal law as well as bankruptcy law can protect certain debtors from the reach of judgment. Bankruptcy law allows all unsecured debts of the borrower to be protected form a judgment in the event the borrower claims bankruptcy.

The type of protection debtors carry varies greatly among the states. The exemption laws set forth in certain states such as Texas and California is much more generous than that of other states like Pennsylvania. General state exemption laws will help protect all, or a portion of the homeowner’s equity in their primary residence, known as the homestead exemption), in home appliances, furnishings, automobiles, tools needed for trade, jewelry, health aids, and insurance benefits.

It is very important for anyone facing a potential judgment to take the time to understand that exemptions from the enforcement of a money judgment by a creditor do not protect a debtor from the enforcement of consensual or statutory liens. Suppose, using facts from the foregoing example, that Tom failed to make monthly mortgage payments to the lender whose debt was secured by the deed of trust on the residential real property. The lender would be able to foreclose on the residence (i.e. force its sale either in a judicial foreclosure sale, to be distinguished from an execution sale, or in a private sale pursuant to powers given in the deed of trust); the homestead exemption would not protect the debtor against enforcement of the consensual lien. On a moment’s reflection, the reason for this should be obvious. When Tom obtained a loan to purchase his residence, he granted the lender a lien to secure his promise to repay the loan; the lender would not have made a loan but for this security.

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