the property is worth more than my lien and they have a first on the property but If I foreclose I could pay off the first and pay my lien and still have money left over... would I give the remaining money back to the defendant?
Real Estate Attorney
The process for enforcing a judgment lien is not technically foreclosure. I have done several of these. You have to file a motion with the court to carry out a sheriff sale pursuant to a writ of execution. If the property is a homestead, the judgment debtor can claim that there is insufficient equity to pay off your lien if the homestead exemption is taken into account. You will need to submit a certified appraisal and title report as part of your motion. The process takes several months. A sheriff's sale is noticed. The judgment debtor can redeem thhe property by paying the judgment in full any time before the sale. This will cost you over $1500 unless you get a fee waiver from the court. Good luck.
Yes, you can begin judicial foreclosure. However, I recommend you consult an attorney before you institute any such proceedings.
The debtor is entitled to statutory homestead protection, assuming the property is the debtor’s principal residence, which may wipe out any equity that could be used to satisfy your lien. Other liens, such as for property taxes, would also have priority over your lien. The debtor also has a statutory right of redemption.
The statutory protection varies considerably according to the debtor’s status. Unless there is equity over and above all other liens and the debtor’s exemption the court may not allow the judgment creditor to sell the property.
If the debtor sought the protection of the bankruptcy court, you could find your lien entirely wiped out in those proceedings. For these and other reasons, many judgment creditors prefer to wait it out until the property is sold or refinanced and because the judgment grows at the rate of 10% per year.
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Criminal Defense Attorney
Agreed. the process is complex and worth at least consulting with an attorney before going forward.
Thomas A. Schaeffer, Esq. Law Office of Juarez and Schaeffer PO Box 16216, San Diego, CA 92105 (619) 804-4327 www.jslaw.org This posting is provided for "informational purposes" only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principals discussed here may differ substantially in individual situations or in different States.