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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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This is a Court of Common Pleas Case, not Magistrate. Pennsylvania,

Customer Question

This is a Court of Common Pleas Case, not Magistrate. Pennsylvania, Blair County
I won a judgment against the defendant. We filed a WRIT to Execute the judgment and Praecipe. The sharrif is placing a levy on personal property and they placed a levy on the defendants bank account yesterday. They still have to go to the defendants house. Today we received a letter from the defendants attorney indicating he is going to try to Strike the judgment. During this entire time the defendants attorney has done nothing. I will show in the following list what he has done.
1. We filed Praecipe for Writ of Summons on 09/20/2012
2. 09/21/2012 WRIT of Summons issued and sent to Sheriff for service
3. Sheriff's return on 09/27/2012. Defendant serviced.
4. 01/15/2013 Praecipe for entry of appearance on behalf of defendants attorney filed.
5. 01/15/2013 Praecipe for rule to file complaint filed by defendants attorney (we did not file complaint yet)
6. 2/11/2013 We filed complaint for Breach of Contract detrimental reliance and unjest enrichment with Certificate of service.
7. 07/17/2013 Order of Court/Default judgment notice, it has been more than 30 days since complaint was served, an answer has not been filed, and the plaintif has failed to file praecipe for default judgment, case will be dismissed within 30days. (This was a court document)
8. 08/01/2013 Affidavit of service filed by plaintiff
9. 08/09/2013 Praecipe for default judgment for failure to answer filed by plaintiff
10. 08-09-2013 Notice of Entry of judgment sent to defendant
11. 08/21/2013 Notice of entry of judgment sent to defendant
12. 08/23/2013 Praecipe for Writ of execution and Writ of execution filed by defendant and sent to Sharrifs office.
13. Called Sharrifs office 08/30/2013, Levy was placed on bank account. Levy was not placed on property yet. (personal)

Now, my question is. The defendant's attorney (as you can see from above) has done NOTHING! Never answered the complaint and also we sent interrogatories which I did not mention above and they were never answered either. Now, the defendants attorney sent a letter to us indicating he is going to try to Strike the Judgment. Can they do this? Does the REQUEST to strike stop the Levy or does the court have to strike the judgement first? How long does it take for the defendant to get an answer from the Court on whether they can strike the judgment? And finally if the bank levy continues, how long does it take for the bank to release the funds and who do they release them to?
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question.

The Defendant has a right to attempt to strike the judgment, although the likelihood this occurring will likely be low if you gave notice to the defense attorney of the case and the default judgment hearing. The Defense attorney will have to show to the judge that he acted with diligence and that the default was not the defendant's fault.

The request to strike the judgment does not stay the judgment. The attorney would have to file a motion to stay in order for the execution of the judgment to be stayed.

In regard to the bank levy, it shall occur on the date it has been scheduled for. The money goes to the sheriff and should be released to you within 5-10 days, less the sheriff's expenses. The sheriff will prepare a written list of the transaction and any expenses.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best regards,
ZDN
Customer: replied 1 year ago.

The request to strike the judgment does not stay the judgment. The attorney would have to file a motion to stay in order for the execution of the judgment to be stayed.


 


If the attorney files a motion to stay does that stop the judgement temporarily or do they have to wait for a judge to rule on it? How long does it take normally to get an answer on whether the judgement can be opened or to hear if they accept the motion to stay?

Expert:  TexLaw replied 1 year ago.
If they file a motion to stay the execution of the judgment, that will temporarily stop the execution until the motion is ruled on. The judge should rule on the motion to strike the judgment within 20 days of it being filed, and probably earlier than that. The court will set the motion for a hearing and it is up to the judge in regard to the scheduling within that time frame.
Customer: replied 1 year ago.

In your opinion, after reviewing the court transcript above (I typed that right from the court printout) do you think they have a chance to get this opened? So the Motion to stay and Motion to strike are two different things?

Expert:  TexLaw replied 1 year ago.
Just based on the information you have given me, I would say that they do not have a very good chance of getting the judgment struck.

Yes, a motion to stay and a motion to strike are two different motions.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4265
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

You had stated above that if they file a "motion to Stay the Execution of the judgment", that will temporarily "stop the execution".


 


My question is, the Sharrif has already executed the judgment as the sharrifs office told me that the bank levy was done last Thursday afternoon. They said they still have to return to his home. So in this case can they still file a motion to stay the execution since it has already been done or is it to late to file a motion to stay?


 


You had said that the bank levy shall occur on the date it has been scheduled. Since it was already done last Thursday, does that mean that we are counting 5-10 days from last Thursday? Does the bank release the money to the Sharrif immediately? This defendant does have a significant amount of funds in his bank account due to the nature of his business.


 


 


 


 


 


 

Customer: replied 1 year ago.
Relist: Other.
The attorney has not answered a question I asked hours ago. It says he is offline
Expert:  TexLaw replied 1 year ago.
They can stay the levy on his personal property out of his home.
But since the bank levy has already been served, it is too late for them to stop this.

In regard to how fast the bank levy will go through, each case is different. However, there does not seem to be a reason here why it should take much longer before you get the money.

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TexLaw
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Lead trial/International commercial attorney licensed 11 yrs