What is a Writ of Execution?
A writ of execution is a “court order” obtained by a plaintiff from the court to enforce a judgment of possession against the defendant or judgment debtor. When such an order is obtained, the court appoints the sheriff or a levying officer to officially take authority over or possession of the property of the judgment debtor. In most cases, the sheriff taking control of the bank account of the defendant is preferred. Another option the judgment creditor could have is to implement a freeze on the title of any property owned by the judgment debtor until the debt is cleared. Property of the judgment debtor could also be sold in a “sheriff’s sale”, proceeds of which would be awarded to the plaintiff in full or partial satisfaction of the judgment. Ordinarily, once a judgment is passed, a defendant pays what is required as per the verdict. Hence the writ of execution need not be implemented. However, if the defendant ignores the judgment against him/her, it forces the plaintiff to use writs of execution to enforce the judgment.
Before a writ of execution is granted, the pursuer should be aware of their rights as well as the rights of the defendant. All assets of the defendant or judgment debtor are not available for execution. For example, social security income, unemployment income, and so on could be exempted up to a certain limit. For more information, ask a Lawyer for answers to your specific case.
How to garnish one’s wages/commission after obtaining a judgment by the court against a realtor from California?
A wage garnishment or in this particular case, in order to have the commission garnished, you would need to obtain a writ of execution. Then the levying officer (usually the sheriff) will go to the debtor’s employer to begin the wage garnishment procedure. The form is required to be filled out completely and submitted to the court clerk, along with the Earnings Witholding Order, to garnish wages.
Can one refuse to pay a writ of execution if they have been denied detailed accounting and the balance owed?
Case Details: A partial payment was made to the law firm of the creditor and after requesting the above, no reply has been made?
You could file a motion to quash the writ of execution in the same court which issued the writ. This motion should highlight that you have made a partial payment and upon requesting accounting information on the balance due, you received no accounting evidence from the law firm. You should attach a copy of any letters or communication sent by you to the law firm as proof. Once this motion to quash is drafted, the original would need to be filed with the court clerk and a copy of the motion should be sent to the attorney of the creditors via United States Postal Services (USPS).
Can a levying officer or sheriff implement a 120-day writ of execution by seizing assets/money within this period of time or is it valid indefinitely?
The validity or expiration of the writ of execution does not pardon you from the obligation of paying the debt as decreed in the judgment. If you fail to pay within this window or have insufficient assets to pay as per the judgment, the plaintiff can request the court to issue another writ of execution until the debt is cleared or judgment has been satisfied. A sheriff or levying officer can implement this at will for the next 10 years. In order to get a respite from paying the debt, you must be able to prove the execution of the writ would result in basic necessities (example: food, water, shelter, and so on) becoming unaffordable to you.
What options are available if one is unable to pay a debt against which a writ of execution has been filed?
If any property you own belongs to the category of a statutory exemption and a claim is imposed on such a property, you have the option to file a claim of exemption with the court. Once this has been filed, the court will hear the case to determine whether the property is factually exempt and cannot be seized by the judgment creditor. If deemed exempt, the property will be reinstated to you. If it falls into an exception category, the levying officer or sheriff is allowed to make a public sale and use the subsequent proceeds as a payoff.
Sometimes a judgment in your favor may not prompt action from the defendant. In such scenarios, a writ of execution helps you enforce the judgment with powers to take possession of the debtor’s money/property to enable you to recover what is due to you. To understand more about the writ of execution, either as a debtor or creditor, consulting with an Expert could prove useful.