How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Law Pro Your Own Question

Law Pro
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 23751
Experience:  20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
11688690
Type Your Real Estate Law Question Here...
Law Pro is online now
A new question is answered every 9 seconds

I have an Abstract of Judgement (California) which has been

Resolved Question:

I have an Abstract of Judgement (California) which has been filed in the counties where the Judgement Debtor owns real estate with equity both a personal residence and investment properties. The investment properties are owned 50% tenant in common with another individual.

Question: Can I force the sale of one of the properties to satisfy my Judgement? If so, what are the statues that define the legal procedure to do so?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Pro replied 1 year ago.

Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is XXXXX XXXXX I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.


Yes, absolutely you can execute against the real estate of tenant in common property.

That basically the property is forced sold their monies go to you to the extend of your judgment and the other owners' get their interest in the sales proceeds.

Judgments may be enforced (collected) in a variety of ways. An Abstract of Judgment recorded with the County Recorder in a county where defendant owns real property may create a judgment lien. This may require payment if certain real property is sold or refinanced. Other lien and enforcement mechanisms may be available in specific circumstances. If a debtor is a plaintiff in a different lawsuit, or a beneficiary in an estate proceeding, the creditor may be entitled to a lien against a recovery from the lawsuit or inheritance. Judgments may also be enforced by garnishment of wages. By following proper procedures, a judgment creditor may be permitted to obtain up to 25% of net pay during each pay period. However, this remedy may be subject to a claim of exemption by individuals. The Court may determine that all or a larger portion than 75% is necessary for the support and maintenance of the defendant and his family members. In addition, in a case where the defendant is currently subject to a current child support order, the creditor may have to wait until the child support order expires, or may receive less than 25% of net earnings per pay period. Other personal property which may be subject to levy are bank accounts, property in a safe deposit box, accounts receivable, and many other items. A judgment creditor may also create a lien against a judgment debtor's business equipment and inventory by filing a lien with the Secretary of State. A post-judgment debtor examination may be used to obtain information about the judgment debtor's assets or employment status. This process requires a Court Order requiring the debtor to appear in Court on a specific date. A representative of the creditor/plaintiff must appear to conduct the examination. The debtor must respond under oath to the judgment creditor's questions regarding assets. The questions must be reasonable. If the defendant does not appear, some Courts may issue an arrest warrant (bench warrant), sometimes only at the request of the creditor/plaintiff. This request is viewed as an extreme measure by many creditors, and great caution should be used to be assured that records are accurate, and that identity and personal service of the Court Order to appear are absolutely certain. Always discuss such legal matters with your legal counsel. There are many exemptions from attachment of personal property. For example, property that is necessary for the support of a defendant and his family or dependents may be exempted, or not subject to attachment by judgment creditors if claimed by the judgment debtor. An defendant may claim a homestead exemption, which may be higher if the debtor or his spouse are over the age of 65 years. A debtor may also be entitled to many other exemptions, which are discussed generally beginning with Code of Civil Procedure Section 703.010, which is linked below for illustration.


Judgment Interest:


Currently, California allows interest at the rate of 10% per annum on the principal amount of a money judgment remaining unsatisfied (Code Of Civil Procedure Section 685.010).




I can't post more but will repost the balance.
Expert:  Law Pro replied 1 year ago.
Presuming that an Abstract of Judgment has been recorded in the county where the subject real property sits, you are now in position to go through the levying process, more commonly known as a "sheriff’s sale."

The first step is obtain a Writ of Execution from the Court. With a Writ of Execution in hand, the next step is to levy the property (California Code of Civil Procedure §§700.010, 700.015).

 

Generally, this requires you give letters of instruction to the levying officer of the county. In the instruction, you tell the levying officer of a county important facts regarding the subject property and to whom the recorded notices of the levy and the copies of the issued Writ of Execution must be served on. However, please note that different counties have different requirements for what the levying officer must be provided.

 

 

Once the property has been levied, the judgment creditor is required to file an Application for Order for sale within a certain time frame. There will then be a hearing on the matter. The real property will then be ordered to sale. However, even if you get this far, there are minimum bidding requirements that must be met before the forced sale can be completed.

 

 

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!

If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).

Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 23751
Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
Law Pro and 5 other Real Estate Law Specialists are ready to help you
Expert:  Law Pro replied 1 year ago.

Judicial Foreclosures Against Individuals’ Real Property

Step 1: Levy on the Property and File a Notice of Levy

After a writ of execution is issued, it must be delivered to the levying officer with instructions and the required fee. (Code Civ. Proc., § 699.530.) The levying officer then “levies” upon specified property of the judgment debtor by taking it into custody or otherwise subjecting it to a lien in favor of the judgment creditor. (Code Civ. Proc., § 700.0l5.) The levying officer is the sheriff of the county to which the writ is directed. Depending on the county, a registered process server may also be used to levy property. (Code Civ. Proc., § 680.260) After levying on a real property dwelling (via Writ of Execution), the levying officer must promptly notify the judgment creditor that the levy has been made. (Code Civ. Proc., § 704.750.) Within twenty days after receipt of such notice, the judgment creditor must:

  1. Apply to the court for an order for sale of the dwelling; and
  2. File a copy of the application with the levying officer. (Code Civ. Proc., § 740.750.)

The creditor should also obtain a litigation guarantee from the title company. The guarantee will contain a legal description of the property, the names of the current owners and a list of all deeds of trust, abstracts of judgments, tax liens and other liens recorded against the property. The creditor should also request two statements not often included in litigation guarantees:

  1. Whether a declaration of homestead has been recorded; and
  2. Whether a current homeowner’s exemption or disabled veteran’s exemption has been filed with the county assessor.

The creditor must determine the amount of all liens and encumbrances on the property to be included in the application for sale. The creditor can ascertain the precise amounts of obligations secured by senior liens by making a written demand for beneficiary statements from the senior lien- holders under California Civil Code section 2943. The beneficiary must provide the information within twenty-one days after receipt of the written demand. (See Civ. Code, § 2943.) A fee up to $30 may be charged by the beneficiary for the statement.

Step 2: Court Order for Application for Sale (Ex-Parte Motion)

The judgment creditor must obtain a court order for sale to foreclosure on a debtor’s place of residence or “dwelling” (Code Civ. Proc., § 704.750.) To do this, the judgment creditor must file the application for an order for sale in the county where the dwelling is located. (Ibid) If the dwelling is located in a county other than the county in which the judgment was obtained, the application should be filed with a court of similar jurisdiction. (Ibid.) This application is made ex- parte to the court. Ex-parte motions are required to follow California Rules of Court, rule 379, which governs notification requirements of the judgment debtor. If the dwelling is not located in the county where the judgment was entered, the judgment creditor must also file an abstract of judgment with the application and pay a $40 fee. The application must be executed under penalty of perjury, and must state the following:

  1. The legal description of the property and the street address of the dwelling;
  2. Whether the records of the county tax assessor indicate that there is a current homeowner’s or disabled veteran’s exemption for the dwelling and, if so, the persons claiming such exemption;
  3. Whether the dwelling is a homestead and the amount of the homestead exemption. This statement may be made on information and belief; and whether the county recorder’s records indicate that a homestead declaration has been recorded by the judgment debtor or his or her spouse (see Homestead Exemption Discussion, below);
  4. The amount of any liens or encumbrances on that dwelling, and the names and addressesof the lien-holders. (Code Civ. Proc., § 704.760.)

The attorney must also, together with the ex-parte application, submit an order to show cause regarding the sale of the dwelling to be signed by the judge and issued to the debtor. (Code Civ. Proc., § 704.770, Subd. (a).) The order requires the debtor’s attendance and explanation of why an order for sale should not be made in accordance with the judgment creditor’s application. Ubid.) The hearing for both the order to show cause and the application for order of sale can be heard no later than forty-five days after the application is filed. (Ibid.)

Step 3: Service by Judgment Creditor

At least thirty days before the hearing, the judgment creditor must satisfy the following service requirements:

  1. The creditor must serve the judgment debtor with copies of the Order to Show Cause, the application for order of sale and the official notice of hearing form. Service may be made personally or by mail.
  2. The creditor must also personally serve the above documents on an occupant of the dwelling; or, if there is no occupant present when service is attempted, must post the documents in a conspicuous place at the dwelling. (Code Civ. Proc., § 707.770, Subd. (b)(l), (2)-)

Note : The creditor essentially must complete the above service requirements within fifteen days. A hearing on the application can be no later than forty days after service of the application for order of sale, and the above service requirements must be met at least thirty days before the hearing date. That leaves the judgment creditor only fifteen days to effectuate service on the judgment debtor.

Step 4: Hearing and the Order

Upon the filing of the application and order to show cause, a hearing must be conducted by the court allowing the defendant an opportunity to oppose the application. (Code Civ. Proc., §704.780.) At the hearing, the court must first determine whether the dwelling is subject to the homestead exemption. If the exemption applies, the court must then:

  1. Determine the amount of the exemption (see discussion on exemptions below);
  2. Determine the Fair Market Value of the Dwelling; and
  3. Issue an order for sale of the dwelling subj ect to the homestead exemption, unless the court determines sale of the dwelling is not likely to produce a bid high enough to satisfy any part of the judgment creditor’s judgment (if the court finds the dwelling is not exempt, it need only issue an order for sale.) (Code Civ. Proc., §704.780, subd. (a)(l).)

Step 5: Issuance of the Order for Sale

An order for sale of the dwelling subject to the homestead exemption must set forth the amount of sale proceeds to be distributed to persons with liens or encumbrances on the dwelling and the names and addresses of each such person. (Code Civ. Proc., § 704.780, subd. (b).) If the court determines sale of the dwelling is not likely to produce a bid greater than the combined amount of the homestead exemption and all senior encumbrances, the property will not be ordered sold. (Ibid) The court clerk must transmit a certified copy of the order to the levying officer. (Code Civ. Proc., § 704.780, subd. (c).)

Step 6: Debtor’s Right to a Re-Hearing if He/She Fails to Appear

If the judgment debtor (or the attorney) fails to appear at the hearing, the debtor must be given an opportunity to request another hearing. Within ten days after the date of the order of sale, the judgment creditor must:

  1. Personally serve or by mail a copy of the order of sale and notice of the order using the official form “Declaration for Rehearing on Homestead Exemption” on the judgment debtor and the judgment debtor’s spouse;
  2. Personally serve the same documents on an occupant of the dwelling; or, if there is no occupant present when service is attempted, Post the documents in a conspicuous place at the dwelling. (Code Civ. Proc., § 704.790, subd. (b).)

Proof of service and of any posting must be filed with the court and levying officer. (Code Civ. Proc., § 704.790, subd. (c).) Failure to comply will result in the dwelling not being sold pursuant to the court order. (Ibid.) If the judgement debtor or spouse files the “Declaration for Rehearing on the Homestead Exemption” with the levying officer within ten days after being served with the notice of the order for sale (extended five days if served by mail), the levying officer must transmit the declaration to the court. (Code Civ. Proc., § 704.790, subd. (d).) The court must then set the rehearing for a date within twenty days of the date the court receives the declaration and the clerk must give prompt notice of the rehearing to the parties. (Ibid.)

Step 7: Execution Sale of Dwelling

An execution sale of a real property dwelling is noticed, advertised, and conducted in the same manner as the sale of any other real property. However, the minimum bid requirements are extremely severe.

The bid at the sale must exceed all liens and encumbrances plus the exemption amount. (Code Civ. Proc., § 704.800, subd. (a).) The highest bid may be accepted by the levying officer only if it exceeds the amount of the homestead exemption plus the amount needed to satisfy all liens and encumbrances on the property. (Ibid.) In addition, if the highest bid does not equal at least 90 percent of the property’s fair market value (as determined by the court), the property may not be sold unless, upon the judgment creditor’s motion, the court:

  1. Grants permission to accept the highest bid (which still must exceed the exemption and lien amounts); or
  2. Makes a new order for sale. (Code Civ. Proc., § 704.800, subd. (b).)

If an adequate bid is not received, the property may not be sold and must be released from the execution lien. (Code Civ. Proc., § 704.800, subd. (a).) However, the creditor’s judgment lien should remain on the property. Any property so released may not be subjected to a court order of sale upon a subsequent application by the same judgment creditor for a period of one year. (Ibid.)

Step 8: Costs

lf an adequate bid is received at the sale, the judgment creditor is entitled to recover reasonable costs incurred in connection with the sale of the dwelling. (Code Civ. Proc., §704.840, subd. (a).) This includes reasonable appraisal fees and fees for beneficiary statements and title reports. (Ibid.) However, if the highest bid does not exceed the amount of the homestead exemption plus “all liens and encumbrances,” the judgment creditor is not entitled to recover any costs of the levy. (Code Civ. Proc., § 704.840, subd. (b).)

Step 9: Distribution of the Proceeds

If an adequate bid is received, the proceeds of the sale are distributed by the levying officer in the following order:

  1. To discharge all liens and encumbrances on the property;
  2. To the judgment debtor in the amount of the homestead exemption;
  3. To the levying officer for all un-advanced costs;
  4. To the judgment creditor, in the following order: a. To satisfy the costs and interest accruing after issuance of the writ of execution for the sale; and then b. To satisfy the amount due on the judgment, with costs and interest (as entered on the writ of execution). (Code Civ. Proc., § 704.8l0.)

Note – There_is no right of redemption following an execution sale of real property, and such sales generally cannot be set aside.

Homestead Exemptions

California provides an automatic “dwelling exemption” against the forced judicial sale of the dwelling occupied by the judgment debtor or the debtor’s spouse. (Code Civ. Proc., § 704.720) The judgment debtor or other exemption claimant need not file a claim of exemption after a real property dwelling is levied upon. (Ibid.) Rather, the judgment creditor is required to obtain a court order for sale of the real property homestead. (Code Civ. Proc., § 704.750) The automatic exemption applies only to forced judicial sales of the debtor’s dwelling. (Code Civ. Proc., §704.720, subd. (b), In re Wilson (9th Cir. 1996) 90 F.3d 347, 350-351.) If the debtor voluntarily sells the property, the proceeds are not exempt. (Ibid.) If a homestead is sold at an execution sale, the exempt proceeds of the sale remain exempt for six months after they are received by the judgment debtor. (Ibid.)

An essential requirement of the dwelling exemption is that the claimant reside on the property on the date the judgment creditor’s lien attached and continuously thereafter. (Code Civ. Proc., § 704.710, subd. (c).) Therefore, a judgment debtor may not move into a dwelling to create an exemption after the creditor obtains a judgment lien or after levy. Ubid.) The dwelling exemption is not available for vacation homes because the dwelling must be the debtor’s principal residence. (Ibid.) The amount of the dwelling exemption is determined by the status of the debtor and the underlying circumstances:

  1. The current amount of a single debtor exemption is $50,000;
  2. The exemption is increased to $75,000 if the judgment debtor or the debtor’s spouse who resides in the homestead is, at the time of the attempted sale, a member of a “family unit” and: a. At least one member of the “family unit” owns no interest in the homestead; or b. One family unit member’s sole interest in the homestead is a community property interest with the judgment debtor;
  3. The exemption is $150,000 if the judgment debtor or spouse who resides in the homestead at the time of the attempted sale meets either the “elderly,” “disabled,” or “low income” qualifications. a. The debtor or spouse is either at least sixty-five years old, or physically or mentally disabled so as to be unable to engage in “substantial gainful employment” (substantial gainful employment is rebuttably presumed if the disabled debtor or spouse is receiving Social Security disability or Social Security benefits); b. The debtor is not married and at least fifty-five years old with a maximum $15,000 gross amiual income (including gross annual income of the judgment debtor’s spouse); or c. The debtor is married and at least fifty-five years old with a maximum $20,000 gross annual income (including gross annual income of the judgment debtor’s spouse). (Code Civ. Proc., § 704.730)

Special Rules Applicable to Married Persons:

The maximum combined homestead exemption for spouses on the same judgment cannot exceed $75,000 or $150,000 regardless of whether the spouses are jointly liable on the judgment or the homestead consists of community property or separate property (or both). (Code Civ. Proc., § 740.730, subd. (b).)

Unmarried Joint Tenants/Tenants in Common

If unmarried judgment debtors own a dwelling as joint tenants or co-tenants, their interests in the dwelling must be sold together. (Code Civ. Proc., § 704.780, subd. (a).) Each judgment debtor entitled to a dwelling exemption may apply it to his or her own interest. (Ibid.) Further, a debtor need not hold entire fee interest in dwelling. A debtor having less than the entire fee in the dwelling may nonetheless assert the dwelling exemption in connection with an execution sale of the property. (In re Hsia (ND CA 1995) 183 B.R. 201, 204 [claimants held undivided joint tenancy interests].) California allows the “automatic dwelling” exemption to be asserted by a tenant in common in connection with a court-ordered partition sale of the property. (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 591 .) An execution sale of a debtor’s interest in joint tenancy property terminates the joint tenancy and extinguishes the right to survivorship, so that the purchaser at the execution sale becomes a tenant in common with the co-owners of the property. (Schoenfeld v. Norberg (1970) 11 Cal.App.3d 755, 760.)

 

 

 

THAT'S THE STEP-BY-STEP PROCEDURE

 

 

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!

If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    6227
    20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    4966
    13 years real estate, Realtor. Landlord 24+ years
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    4446
    I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg Ray's Avatar

    Ray

    Lawyer

    Satisfied Customers:

    4030
    Texas Attorney for 29 years dealing in real estate
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    2377
    12+ yrs. of experience including real estate law.
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    2355
    B.A.; M.B.A.; J.D.