Judgment Collection: How To Lien A Real Property

Lien on Real Property

This method of collecting your judgment puts a lien on real estate, usually the judgment debtor’s home or rental property. It often prevents the debtor who owns any interest in real property for (i.e., a plot of land, a house, a commercial building) from being able to sell or refinance property without first paying off the judgment.

An Abstract of Judgment (form EJ-001) must be issued with the court. You must wait at least 30 days from the date the judgment is entered.

Starting the Process of a Lien

1. Complete the abstract form and pay the fee to issue the Abstract of Judgment form. File the original and 2 copies of the EJ-001 with the Clerk’s Office. The Clerk will issue and give you back the original and filed copies.

2. Take or mail the Abstract of Judgment to the county recorder’s office in the county where you believe the debtor owns real property. They will record the abstract, which places a lien on the property. The recorder’s office will then give you back a recorded (stamped) copy. (The recording fee should be about $20).

You will not be paid automatically, but if there is a refinancing or sale of the property, you should get paid your money with interest. (CCP § Sections 697.310 through 697.410) Some county assessors will confirm if a debtor owns real property over the phone.

Even if the debtor doesn’t own property now, you can still record a filed copy of the Abstract of Judgment form at the county recorder’s office. This accomplishes two things:

1) Credit reporting agencies routinely check for recorded abstracts to find out if people have unpaid judgments against them.

2) If the debtor ever owns any interest in real property in the future, the pre-recorded abstract will adversely impact the debtor’s ownership interest until the judgment is paid off

Liens last up to 10 years, the same amount of time your judgments lasts. Before the 10 years run out, be sure to renew your judgment.

Can I Have the Debtor’s House or Other Real Estate Sold at Public Auction?

Yes. You can have the sheriff/marshal take the debtor’s real property and have it sold at public auction. For more information, check out Code of Civil Procedure §700.015, §§701.540 through 701.680, and §§704.710 through 704.850. This is a relatively complex way to collect a judgment. If you still want to do it, follow these steps:

1. Start by getting information about the real property from the county assessor’s office and the county recorder’s office. Does a bank or other lender have an interest in the property? Are there other owners of the property?

2. Have the court issue a Writ of Execution (EJ-130) to the sheriff/marshal in the county where the real property is located.

3. Give the sheriff/marshal written instructions and their fees. The sheriff will probably have a form of Real Property Levy Instructions. The fees will probably be approximately $1,000.

4. An officer will then serve a Notice of Levy on the debtor and you.

5. If the real property is a dwelling, you must ask the court for an order of sale. You must do this within 20 days of receiving notice that the levy has been made.

6. After 120 days, an officer will then serve a Notice of Sale on the debtor. The notice will be posted in a public place and on the property. It’s served on the occupant of the property, if there is one. The notice also is published in the local newspaper and mailed to any lien holders.

7. Proceeds from the sale are to be distributed within 30 days after the sal

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Reduce Taxes and Headaches By Planning Real Property Transfers

In an estate plan, when you pass away, you are the one who decides who you want your property to go to, and how you want them to receive it. Any land and any improvements such as a house or a crop that have been made to that land are considered to be real property. There are several options you have when leaving someone real property. The options you have depend on certain factors such as:

Who you want to transfer it to.

How much control you want to have during your lifetime.

The worry if it will be sold to pay your debts.

Transferring Your Property Through A Will

When people pass away, they generally use a will to transfer their property. This process consists of the property passing through the probate process, which is the legal transfer to the beneficiaries. There is a possibility if the person has passed away with a significant amount of debt, for the real property to be liquidated or sold in order to raise money to pay for these debts. Thus, a will may not be a foolproof way of transferring real estate to the predetermined owners.

Moving Your Property to a Trust

There are other ways to transfer your real property to a beneficiary, such as creating a living trust. This means that while you are alive, you transfer the title of the property to your trust. Later, when you pass away, the trust transfers the property to the beneficiary that you have already predetermined. This does not always protect your property from a sale if you are leaving a significant amount of debt, but it does avoid probate.

Creating a Life Estate

Giving someone a life estate in your property is another way in which you can transfer use of real property. When you pass away, the property is left to that person, but they do not take ownership of the property. This person only has the authority to live in this property. When the beneficiary of the life estate passes away, the property is then transferred to another person who is named in your will.

An Estate Lawyer Can Help

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