How Do I Create a Lien on Real Estate of a Debtor in Default?
Full Question:
Answer:
I'm assuming the loan contract doesn't contain a security interest in the real estate. To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. If the property is owned by a business and the business is not named as a party, a lien may not be possible since a business entity often isn't liable for the personal debts of its owners. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed.
There are several types of liens, all of which could cloud the title and prevent the seller from conveying marketable title to the buyer. A judgment lien is created when a court grants a creditor an interest in the debtor's property, based upon a court judgment. A judgment lien can be filed if an actual judgment in a lawsuit is obtained from a court. Such cases include failure to pay a debt, including credit cards, bank loans, or deficiency judgments on repossessed vehicles. In some circumstances, judgments can be enforced by sale of property until the amount due is satisfied. A plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor."
A judgment lien is created when a plaintiff gets a judgment for money damages against a defendant and records that judgment in the county where land of the defendant is located. After the judgment creditor places a lien upon the attached property, the next step in the collection process is to conduct a sale of the attached property to satisfy the judgment debt. If a lien were placed on a vehicle, the judgment creditor would then seek to sell the vehicle, in the same way a mortgage holder such as a bank would foreclose if it were not paid.
A judgment creditor may also request that the court issue a writ for garnishment of the debtor's wages. If granted, the court order for garnishment is served directly upon the debtor's employer, who must comply with its terms. Wage garnishment is a legal procedure governed by
state law in which a person’s earnings are required by court order to be withheld by an employer for the payment of a debt and paid directly to the judgment creditor by the debtor's employer. There are different types of garnishments, as defined by state laws, which vary by state. A garnishment may be made on a one-time or continuing basis. Some kinds of income are exempt, which means that they cannot be garnished at all by creditors for consumer debts, including welfare, unemployment, veterans benefits, Social security, workers' compensation, pensions, and child support payments that you receive. For ordinary garnishments (i.e., those not for support, bankruptcy, or any state or federal tax), the weekly amount may not exceed the lesser of two figures: 25 percent of the employee's disposable earnings, or the amount by which an employee's disposable earnings are greater than 30 times the federal minimum wage.
If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:
Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.
An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.
Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.
Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.
Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.
Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.
Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.
Please see the following CA statutes:
699.510. (a) Subject to subdivision (b), after entry of a money
judgment, a writ of execution shall be issued by the clerk of the
court upon application of the judgment creditor and shall be directed
to the levying officer in the county where the levy is to be made
and to any registered process server. The clerk of the court shall
give priority to the application for, and issuance of, writs of
execution on orders or judgments for child support and spousal
support. A separate writ shall be issued for each county where a
levy is to be made. Writs may be issued successively until the money
judgment is satisfied, except that a new writ may not be issued for
a county until the expiration of 180 days after the issuance of a
prior writ for that county unless the prior writ is first returned.
(b) If the judgment creditor seeks a writ of execution to enforce
a judgment made, entered, or enforceable pursuant to the Family Code,
in addition to the requirements of this article, the judgment
creditor shall satisfy the requirements of any applicable provisions
of the Family Code.
(c) (1) The writ of execution shall be issued in the name of the
judgment debtor as listed on the judgment and may include the
additional name or names by which the judgment debtor is known as set
forth in the affidavit of identity, as defined in Section 680.135,
filed by the judgment creditor with the application for issuance of
the writ of execution. Prior to the clerk of the court issuing a
writ of execution containing any additional name or names by which
the judgment debtor is known that are not listed on the judgment, the
court shall approve the affidavit of identity. If the court
determines, without a hearing or a notice, that the affidavit of
identity states sufficient facts upon which the judgment creditor has
identified the additional names of the judgment debtor, the court
shall authorize the issuance of the writ of execution with the
additional name or names.
(2) In any case where the writ of execution lists any name other
than that listed on the judgment, the person in possession or control
of the levied property, if other than the judgment debtor, shall not
pay to the levying officer the amount or deliver the property being
levied upon until being notified to do so by the levying officer.
The levying officer may not require the person, if other than the
judgment debtor, in possession or control of the levied property to
pay the amount or deliver the property levied upon until the
expiration of 15 days after service of notice of levy.
(3) If a person who is not the judgment debtor has property
erroneously subject to an enforcement of judgment proceeding based
upon an affidavit of identity, the person shall be entitled to the
recovery of reasonable attorney's fees and costs from the judgment
creditor incurred in releasing the person's property from a writ of
execution, in addition to any other damages or penalties to which an
aggrieved person may be entitled to by law, including the provisions
of Division 4 (commencing with Section 720.010).
699.520. The writ of execution shall require the levying officer to
whom it is directed to enforce the money judgment and shall include
the following information:
(a) The date of issuance of the writ.
(b) The title of the court where the judgment is entered and the
cause and number of the action.
(c) The name and address of the judgment creditor and the name and
last known address of the judgment debtor.
(d) The date of the entry of the judgment and of any subsequent
renewals and where entered in the records of the court.
(e) The total amount of the money judgment as entered or renewed,
together with costs thereafter added to the judgment pursuant to
Section 685.090 and the accrued interest on the judgment from the
date of entry or renewal of the judgment to the date of issuance of
the writ, reduced by any partial satisfactions and by any amounts no
longer enforceable.
(f) The amount required to satisfy the money judgment on the date
the writ is issued.
(g) The amount of interest accruing daily on the principal amount
of the judgment from the date the writ is issued.
(h) Whether any person has requested notice of sale under the
judgment and, if so, the name and mailing address of such person.
(i) The sum of the fees and costs added to the judgment pursuant
to Section 6103.5 or 68511.3 of the Government Code and which is in
addition to the amount owing to the judgment creditor on the
judgment.
(j) Whether the writ of execution includes any additional names of
the judgment debtor pursuant to an affidavit of identity, as defined
in Section 680.135.
699.530. (a) Upon delivery of the writ of execution to the levying
officer to whom the writ is directed, together with the written
instructions of the judgment creditor, the levying officer shall
execute the writ in the manner prescribed by law.
(b) The levying officer may not levy upon any property under the
writ after the expiration of 180 days from the date the writ was
issued.
699.540. The notice of levy required by Article 4 (commencing with
Section 700.010) shall inform the person notified of all of the
following:
(a) The capacity in which the person is notified.
(b) The property that is levied upon.
(c) The person's rights under the levy, including the right to
claim an exemption pursuant to Chapter 4 (commencing with Section
703.010) and the right to make a third-party claim pursuant to
Division 4 (commencing with Section 720.010).
(d) The person's duties under the levy.
(e) All names listed in the writ of execution pursuant to an
affidavit of identity, as defined in Section 680.135, if any.
699.545. A copy of the original notice of levy which has been
served upon a third party holding the property sought to be levied
upon and the affidavit of identity, as defined in Section 680.135, if
any, if served upon the judgment debtor or any other party, shall
suffice as the notice of levy to that person.
699.550. In any case where property has been levied upon and,
pursuant to a levy, a copy of the writ of execution and a notice of
levy are required by statute to be posted or to be served on or
mailed to the judgment debtor or other person, failure to post,
serve, or mail the copy of the writ and the notice does not affect
the execution lien created by the levy. Failure to serve on or mail
to the judgment debtor a list of exemptions does not affect the
execution lien created by the levy.
699.560. (a) Except as provided in subdivisions (b) and (c), the
levying officer to whom the writ of execution is delivered shall
return the writ to the court, together with a report of the levying
officer's actions and an accounting of amounts collected and costs
incurred, at the earliest of the following times:
(1) Two years from the date of issuance of the writ.
(2) Promptly after all of the duties under the writ are performed.
(3) When return is requested in writing by the judgment creditor.
(4) If no levy takes place under the writ within 180 days after
its issuance, promptly after the expiration of the 180-day period.
(5) Upon expiration of the time for enforcement of the money
judgment.
(b) If a levy has been made under Section 700.200 upon an interest
in personal property in the estate of a decedent, the writ shall be
returned within the time prescribed in Section 700.200.
(c) If a levy has been made under Section 5103 of the Family Code
on the judgment debtor's right to the payment of benefits from an
employee pension benefit plan, the writ shall be returned within the
time prescribed in that section.
(d) If a levy has been made under the Wage Garnishment Law
(Chapter 5 (commencing with Section 706.010)), and the earnings
withholding order remains in effect, the writ of execution shall be
returned as provided in subdivision (a) and a supplemental return
shall be made as provided in Section 706.033.
Please see also:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=706.100-706.109
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=699.510-699.560
