When you have a money judgment and the debtor refuses to pay, you may be
able to recover the debt by putting a “lien” on his or her land, and even selling it
by registering a writ of seizure and sale. Registering a lien on the debtor’s land,
by filing a writ of seizure and sale, is often an excellent way to get the debtor to
pay because the lien may discourage other lenders from extending or renewing
credit to the debtor. Further, when the debtor sells the land, the lien must be paid
from the proceeds before the sale can be finalized.
Rule 60.07 of the Rules of Civil Procedure governs the registration of the writ of
seizure and sale against the debtor's property. It is issued by the registrar of the
court upon receipt of a judgement and a requisition setting out what is owed.
Leave to issue a writ of seizure and sale is only required where more than six
years have elapsed since the date of the judgement or if it is subject to the
fulfillment of a term or condition. Writs of seizure and sale remain in force for six
years, before and after renewal, and may be amended to account for changes or
variations to the debtor's name by motion made without notice to a judge.
A writ of seizure and sale may be enforced by filing a direction to enforce with the
sheriff. If the sheriff seizes personal property, he or she must, on request, deliver
an inventory of the property seized to the debtor and give notice of the time and
place of any sale. You may commence steps to sell a debtor's land four months
after the filing of the writ of seizure and sale by requiring sheriff to give the
necessary notices of the sale, although no sale can take place until six months
have elapsed from the filing of the writ.
A sale of a debtor's property can be complicated and expensive. Frequently, if
not invariably, it is often preferable to register the writ of seizure and sale and
wait for the debtor either to re-mortgage or to sell his or her property. Most
judgments accrue interest and costs.
By Charles Baker