How do I file a motion to set aside a writ of execution for a bank levy?

02/01/2007 - Debts and Credit - State: CA #1057

Full Question:

I need to make a motion to set aside a writ of execution for a bank levy. I was sued by a creditor. Can you tell what forms I will need?

Answer:

The court issuing a writ of execution on a judgment has inherent power to grant relief from such execution by vacation of it or vacation of any particular step taken under it, including the execution sale and a deed (or other instrument transferring title) executed and delivered in pursuance of such sale. Irregularities as to the judgment, writ of execution, levy, appraisement, sale, or property subjected to execution may constitute sufficient cause for vacating an execution sale. However, there is no absolute right to have an execution sale vacated on the ground of defects or irregularities in the proceedings unless it is shown that a material injury has been caused. Vacation of an execution sale is obtainable, in a proper case, on motion, or by petition and rule to show cause why the execution sale should not be set aside, in the court from which the writ of execution issued. All persons whose interests may be affected by the vacation should be made parties to the proceedings.

A proceeding to vacate an execution is one at law for the granting of judicial relief by the court from which the writ of execution issued. The remedy is a special proceeding and summary in nature.

The irregularity of a judgment may constitute sufficient cause for setting aside an execution, including the writ or a levy or sale under execution, at least if the irregularity is one rendering the judgment void. In some cases mistake, accident, misunderstanding, or surprise may be sufficient cause for vacating an execution. But a motion to quash will be denied if the irregularity merely renders the execution voidable and the matter causing the irregularity has been removed.



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02/01/2007 - Category: Debts and Credit - State: CA #1057

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