In North Carolina, there are several items an individual can protect from the judgment’s reach. Analyzing thousands of pages of poorly-copied document production for that smoking-gun email, determining just the right dollar amount for your client’s twelfth counteroffer to keep the adverse party engaged in settlement efforts, and speed-reading opposing counsel’s summary judgment brief which was hand-delivered to you 30 seconds before the hearing started; such tasks lend themselves to intense focus, not an appreciation for the “bigger picture.” Yet, when the fortunate litigator does succeed in obtaining a civil judgment, whether by settlement, motion, verdict, or sheer luck, she is quickly confronted with the inevitable question from the client: how do we magically turn this paper judgment into gold? Accordingly, the judgment creditor should always have a Writ of Execution issued before moving on to subsequent post-judgment steps – even if the creditor is confident at the outset that the Sheriff will not locate property subject to levy. § 1-324.2. The net proceeds of a Sheriff’s sale, after deducting the Sheriff’s commission and expenses of sale, are delivered by the Sheriff to the Clerk. The judgment debtor has twenty (20) days from the date of service within which to file the Motion designating her exempt property and/or to request a hearing before the Clerk. § 1C-1603(e)(7). If the account contains sufficient money to pay the amount of the garnishment, the institution can pay checks drawn on the account or allow you to withdraw money. Turning Up the Heat: Post-Judgment Levy on Funds, One frequently-successful option for catalyzing your client’s judgment into currency is a post-judgment levy on funds in the debtor’s bank account. Where the creditor has information that the debtor may have a deposit account with a bank with an office in a county within the Clerk’s jurisdiction, the industrious post-judgment alchemist may file with the Clerk an ex parte motion pursuant to N.C.G.S. §§ 1-302 et seq. Note that real property execution sales are subject to an upset bid process, where the high bid can be upset with a new bid of the greater of 5% of the prior bid or $750.00, delivered to the clerk within 10 days of the sale date. Id.§ 1-352. § 1-324.4. NC General Statutes - Chapter 1 Article 28 1 SUBCHAPTER X. execution sales are subject to an upset bid process, where the high bid can be upset with a new bid of the greater of 5% of the prior bid or $750.00, delivered to the clerk within 10 days of the sale date. § 1-352.1. In North Carolina, judgment creditors cannot garnish wages as a general rule. The Sheriff has 90 days to act on a Writ of Execution. It is critically important to note that each of the below-discussed supplemental post-judgment proceedings becomes available only after a Writ of Execution has been issued (and in some cases, only after the Writ is returned unsatisfied). If the Sheriff finds no property on which to levy, is returned unsatisfied to the Clerk. Posted on Mar 24, 2010. If the debtor fails to so act, her statutory exemptions are waived, and the judgment creditor may proceed with obtaining a Writ of Execution that will not be subject to any property exemptions. Preparing Your Laboratory: Debtor’s Exemptions In order to get to judgment execution, the initial ingredient in the post-judgment collections formula, the judgment creditor must first (1) wait for the time to file a notice of appeal has expired, which is thirty (30) days from entry of judgment (tip: be sure to serve all parties with copies of the entered judgment under NCRCP 58 to get this clock started! An individual (human) judgment debtor who is a North Carolina resident is afforded certain exemptions of her property from collection in satisfaction of a judgment debt by N.C.G.S. In either case, ensure the Sheriff receives the Writ along with your $30.00 fee per defendant for service. This is a court order instructing the Sheriff to enforce your judgment in the county where the assets are located. § 1-352.2. Any person having charge or control of the corporate debtor’s property must provide the Sheriff with the names of the corporate directors and officers and a schedule of all of the corporation’s property. § 1-360 provides that “debtors of the judgment debtor may be summoned,” and in the banking context, every deposit of funds by a debtor into her bank account constitutes a credit to the debtor and renders the bank a “debtor of the debtor.”. This was done pursuant to the court’s authority found in North Carolina General Statute § 1-359, which provides that upon issuance of an execution against property, all debtors of the judgment debtor (e.g., the debtor’s bank) may pay the sheriff the amount of their debt to the debtor (e.g., funds on deposit in the debtor’s bank account). If you suspect that your debtor has assets located in a different county, transcribe your judgment accordingly and repeat the execution process. The writ will also instruct the bank on whether to send the funds directly to the creditor or to the registry of the court. Each of these options should be viewed by the post-judgment alchemist as having dual purposes: the discovery of information about the debtor’s assets that may be subject to sale by the Court in satisfaction of the post-judgment debt, and the opportunity to pursue continued settlement negotiations with the judgment debtor. The Sheriff is your sole avenue to converting your paper judgment into cash at this stage, so be sure to allow at least four weeks to pass before making an initial inquiry. efforts. Proving the Hypothesis: Final Thoughts With intentional planning and a grasp of the numerous statutory tools available, the scrupulous litigator may from time to time successfully achieve the alchemy of converting paper judgment to tradeable currency. Do not annoy the Sheriff with overly-frequent calls! § 1-358. § 1C-1603(a)(4) allows the creditor next to serve the Notice and Motion to the debtor’s last known address by regular mail and to file with the Clerk a certificate of mailing indicating that personal service was attempted unsuccessfully. However, nearly everything else is up for grabs (including bank accounts, if … Additionally, each instance where the debtor is required to appear in court affords the creditor another opportunity to learn more about the debtor’s assets and situation, and more importantly, to engage in post-judgment settlement efforts and start receiving cash payments on your paper judgment. § 1C-1601(a)(1), known as the “homestead exemption”; up to $3,500.00 in value of one motor vehicle. The statutes prevent you from taking money out of the account until satisfaction of the debt. Fill out and send the Writ to the Clerk with a cover letter and $25.00 fee to have the Writ entered. If this time runs out, you’ll have to go back to the small claims clerk and get another writ of execution issued. financial institution pursuant to the attached writ of execution. These forms explain the available statutory exemptions to the debtor and provide instructions for the debtor to claim her exemptions by completing and filing the Motion to Claim Exempt Property and/or requesting a hearing. In the event the Sheriff locates property on which to levy, he will contact you to request an advancement of fees. The power of the Sheriff to levy on property is statutorily limited: only property owned by the debtor (not the interests of another joint owner or property owned as tenants by the entireties) is subject to execution, and the Sheriff cannot resolve ownership or valuation disputes, which must instead be adjudicated by the Court. If you suspect that your debtor has assets located in a different county, transcribe your judgment accordingly and repeat the execution process. After the period of claiming exemptions has expired and any objections have been resolved, the judgment creditor may request a Writ of Execution to the Clerk of Court for issuance of an Order for Execution. If the Sheriff finds no property on which to levy, the Writ of Execution is returned unsatisfied to the Clerk. § 1-362. Upon receipt back from the Clerk, you must serve the debtor with the issued Notice and Motion. For. The Sheriff’s efforts to locate property subject to execution vary from county to county, but will generally involve a written letter to the debtor demanding payment, a search of the county’s Register of Deeds for any. The power of the Sheriff to levy on property is statutorily limited: only property owned by the debtor (not the interests of another joint owner or property owned as tenants by the entireties) is subject to execution, and the Sheriff cannot resolve ownership or valuation disputes, which must instead be adjudicated by the Court. §§ 1-339.41 -.71. If your debtor is a corporate entity, proceed to Step 2. N.C.G.S. up to $35,000.00 in value of real property, or personal property (often a mobile home that has not had its title retired to the land on which it sits), that is the debtor’s residence, except that a debtor who is 65 or older may exempt up to $60,000.00 if the property was previously owned as tenants by the entireties or joint tenants with right of survivorship by the debtor and a deceased spouse, N.C.G.S. If you are attaching the contents of a cash drawer or bank account, the execution is a one-time action. A bank can generally garnish a joint account even if only one of the account holders owes the debt. Where the judgment remains unsatisfied and within 3 years from the issuance of a Writ of Execution, the judgment creditor may move the court to order the debtor, her agent, or anyone having possession or control of her property to produce and permit the inspection and copying of documents and records that are the debtor’s property or provide evidence of the debtor’s property, or to permit the creditor’s entry upon private lands for the purpose of inspecting the debtor’s property. N.C.G.S. Thereafter, the creditor may submit a Writ of Execution to the clerk of superior court in the county in which the judgment was granted, and once issued, submit the writ to the sheriff. A corporate (non-human) judgment debtor has no exemptions. This Writ Of Execution was served as follows: $ $ $ Total Sum Collected Amount Retained For Expenses Service Fee Paid Date Received Paid By Date Executed Id. 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