How Do I Seize Assets after I Win a Civil Lawsuit?
Many people assume that if they prevail in a civil court case and the Judge enters a judgment order against the Defendant, the successful Plaintiff will automatically get paid. Unfortunately for many successful Plaintiffs, winning the lawsuit is just the first step in recovering the funds which they are owed.
When a Defendant loses a civil case and has a judgment entered against her/him, she/he is known as a “judgment debtor.” The successful Plaintiff is called the “judgment creditor.” Issues often arises when the judgment debtor does not have enough money to pay the judgment. One option available to the judgment creditor is using the judicial process to seize and sell tangible assets owned by the judgment debtor.
Virginia Code §8.01-466 authorizes the judgment creditor to request the Clerk of the Court to issue a writ of fieri fascias. Most people call this a “fi-fa writ” for short. The fi-fa writ is requested by filling out a simple form (Circuit Court form CC-1481) which is available on the Court’s website. Within a few days the Clerk will complete the writ and deliver it to the Sheriff. The writ commands the sheriff “to make the money . . . out of the goods and chattels of the person against whom the judgment has been entered.
Once the sheriff’s office receives the writ from the Clerk, they will send a deputy to the judgment debtor’s address to make an inventory of the personal property located there which is eligible for sale. To determine which property is eligible, the deputy will ask the judgment debtor whether he/she owns the property. If the judgment debtor answers “yes,” the property will be included on an inventory of eligible items. However, if the judgment debtor answers that a piece of property is rented, not owned, the item will be excluded it from the inventory. The judgment debtor will then be required to identify the owner, and the sheriff will contact that person to verify the ownership.
Of note, there are certain exemptions under Virginia Code §34-4, commonly referred to as the “Homestead Exemption.” For example, the judgment creditor may not leave the judgment debtor with less than $5,000 value in real or personal property, or if the judgment debtor is 65 years old or older, with less than $10,000. Additionally, if the judgment debtor’s principle residence is sold, $25,000 of the equity in the home is exempt. These exempted amounts increase by $500 for each dependent that the judgment debtor supports. Furthermore, there are certain items of personal property that are always exempt from seizure and sale. These include a family bible, wedding and engagement rings, family heirlooms not exceeding $5,000 in value; items of clothing not exceeding $1,000 in value, pets, unpaid spousal or child support and various other items (Va. Code §34-26). Certain other items are exempt as well, such as pre-paid tuition plans and “ABLE” accounts intended for future disability expenses (Va. Code § 23.1-707), certain farming equipment (Va. Code §34-27) and several others. Items put on the sheriff’s inventory remain in the judgment debtor’s possession and she/he can use them up until the day of the sale. The debtor is obligated however to make the item available on the date of sale. If a judgment debtor believes that items were improperly included in the sheriff’s inventory for sale, she/he may request a hearing before the Court to make a determination. (Va. Code §8.01-546.1).
The items will be sold at a public auction, which usually occurs about 45 days after the Sheriff levies execution on the items. Money from the sale is applied first to pay whatever amount the judgment debtor might owe a lender on that item, then to pay the costs of the sale, and finally any leftover funds will be applied to the judgment amount. If the judgment amount is not fully paid by the proceeds from the sale, the remaining amount is referred to as a “deficiency,” and the judgment creditor still has a claim on this amount.
In addition to the seizure of tangible assets described above, there are a few other ways to recover money from a judgment debtor. These can include garnishing the debtor’s bank accounts and garnishing a portion of the debtor’s wages. As you can see, winning a Court case is only part of the battle and the process is rather complex. If you need assistance with filing a lawsuit, or with collecting on a judgment, it is wise to contact an attorney with experience in these matters.
Bryan Peeples is a Pender & Coward attorney focusing his practice on waterfront property rights, workers’ compensation, and general civil litigation.
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