A writ of execution is a court-ordered judgment whereby a court takes possession of a defaulting borrower’s property as a means of collateral for a lender. The seized property may be a physical piece of real estate or a borrower’s bank account.
To file for a writ of execution, a lender must file Form EJ-130 with a court. Some courts may also require the lender to submit an affidavit detailing the borrower’s debt. Should the court approve a lender’s request for a writ of execution, the court will order a sheriff to seize the borrower’s property.
The lender may then foreclose on the property as a means of recouping its losses. The property is sold at a public auction known as an execution sale, or sheriff’s sale. The property transfers to the new buyer via a sheriff’s deed. The purchase of a property from a sheriff’s sale is not protected by any warranties; it is the new buyer’s responsibility to inspect the property’s title history before purchasing.
California courts always attempt to help a property owner avoid foreclosure when it is an option. If a writ of execution has been requested, a borrower is given the option to pay off the debt, get on a payment plan, or settle the debt with the lender. A court may also grant a temporary freeze on the borrower’s property title or place a lien on the property, instead of foreclosing.
Some forms of income and assets are exempt from a writ of execution:
social security income
retirement accounts (i.e. IRAs)
unemployment income
A writ of execution is only valid for 180 days. After that period, it must be renewed.
Case Review: Palmer v. Zaklama (2003)
The case, Palmer v. Zaklama (2003) 109 Cal.4th 1367., involved a dispute that included a mechanic’s lien, a sheriff’s sale, and a wrongfully recorded lis pendens.
The Zaklama family lived on a property that was current on all payments, including mortgage and property taxes. When the family decided to move to Los Angeles, they transferred the property to a property manager (Sykora). Sykora was responsible for taking care of the property and renting it out.
During this period, Sykora had various repairs made to the property. The total cost of the repairs exceeded $9,000. The Zaklamas did not agree to pay. To recover the outstanding balance, Sykora obtained a mechanic’s lien judgment for the amount of $9,000. The court issued a writ of execution against the property and it was sold in a sheriff’s sale to a buyer (Palmer).
Upon the sale’s execution, the Zaklamas filed multiple lawsuits, including a lis pendens and a civil rights lawsuit against Palmer. The civil rights action sought to rescind the sheriff’s sale on the grounds that the Palmer was in “cahoots” with Sykora and the sheriff to acquire the property’s title. In response, Palmer filed a counter lawsuit against the Zaklamas, alleging that title was slandered and that they were unfairly targeted for prosecution.
The Superior Court concluded that the Zaklamas were liable for damages due to the wrongful recordation of a lis pendens. The court awarded Palmer compensatory and punitive damages totaling $230,000 to recover losses as a result of the lis pendens, including the inability to sell the property or retain financing. The Zaklamas appealed. The lower court’s ruling was affimed.
