9.3 Enforcement of Judgment Liens

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

9.3 ENFORCEMENT OF JUDGMENT LIENS ¹⁹¹

9.301 Introduction. After a judgment has been obtained, ¹⁹² the creditor's or the creditor's agent's or attorney's next step is to have the judgment lien attach to as much of the judgment debtor's property as possible.

The appropriate procedures vary with individual cases. At the very least, the judgment should be docketed in all jurisdictions in which the judgment debtor owns real estate, has an interest in real estate, or has a potential of inheriting an interest in real estate.

If the estate of the judgment debtor is unknown, the creditor or the creditor's attorney should proceed with interrogatories to clarify the extent of the judgment debtor's estate.

9.302 Enforcing an Equitable Decree. A decree for land or specific personal property and a decree requiring the payment of money have the effect of a judgment for that land, property, or money and may be collected by any method used to enforce a judgment. ¹⁹³ Further, the persons entitled to the benefit of any decree requiring the payment of money are deemed judgment creditors, even if the money must be paid into a court, a bank, or other place of deposit. ¹⁹⁴

9.303 Perfecting a Judgment Lien on Real Estate.

A. Docketing the Judgment.

1. In General. A judgment must be docketed in the jurisdiction in which the debtor owns property in order to constitute a lien on the debtor's real estate. An abstract of judgment should be docketed in each jurisdiction in which the debtor owns property.

[Page 1295]

2. Circuit Court. The clerk of the circuit court in which the judgment was rendered should automatically docket every judgment of that court. ¹⁹⁵ For the clerk to docket a judgment rendered by another circuit court, an abstract of the judgment must be delivered to the clerk and the appropriate costs paid, whereupon the clerk will docket the judgment. ¹⁹⁶

3. General District Court. The clerk of the circuit court will docket any judgment of which an abstract has been delivered to the clerk certified by the district court judge who rendered it. ¹⁹⁷

4. Federal Court. Judgments and decrees rendered by federal courts in Virginia may be docketed in a state circuit court upon delivery of an abstract of the judgment. ¹⁹⁸

5. Names. A judgment is not regarded as docketed as to any defendant under whose name it is not indexed. ¹⁹⁹ If the judgment debtor's name changes after docketing, either by marriage, court order, or voluntary assumption of a new name, the clerk will docket and index the judgment in the new name upon the presentation by an interested party of an affidavit stating that the judgment debtor has acquired a new name. Execution can then issue in the prior name, the new name, or both names. ²⁰⁰

B. When the Judgment Lien Arises.

1. Real Property. A judgment becomes a lien on all realty owned by the judgment debtor in the city or county in which the judgment is docketed. The lien dates from the time of docketing on property that the debtor either owns at the time of docketing or thereafter acquires. ²⁰¹

2. Personal Property. Docketing a judgment does not affect the personal property of a judgment debtor.

[Page 1296]

3. After-Acquired Property. A judgment lien also attaches to property obtained by the debtor after docketing. Judgment liens attach in the same order on after-acquired property as they did when the priorities were originally established. ²⁰²

C. Jurisdiction. Jurisdiction to enforce a judgment lien against real estate is in equity. ²⁰³ It is enforced by a creditor's bill. If the land lies in two jurisdictions, the suit may be brought in either jurisdiction. ²⁰⁴

D. Duration of the Judgment Lien.

1. Judgment Entered in Circuit Court. The lien of a judgment obtained in circuit court generally can be enforced at any time during the life of the judgment, which is 20 years from the date of the judgment. ²⁰⁵ If the property subject to the judgment lien has been conveyed to a third party for value, the suit to enforce the lien must be brought within 10 years from the recordation of the deed from the judgment debtor to the grantee, unless a notice of lis pendens has been recorded in the manner provided by section 8.01-268 of the Virginia Code before the expiration of the 10-year period. ²⁰⁶

2. Enforcement Against the Judgment Debtor's Personal Representative. Formerly, if a judgment debtor died, the suit to enforce the judgment had to be brought within five years from the date of qualification of the decedent's personal representative, but section 8.01-251 of the Virginia Code does not pick up this five-year limitation.

3. Extension of the Judgment. The life of a judgment can be extended for an additional 20-year period on motion of the judgment creditor or the judgment creditor's assignee with notice to the judgment debtor to show cause why the time should not be extended. The motion to extend must be filed within the 20-year period. ²⁰⁷ Additional extensions may be granted using the same procedure.

[Page 1297]

The revived judgment must be re-docketed to become effective. When the revived judgment is docketed, it relates back to the date of the original docketing. ²⁰⁸

Section 8.01-251(B) states that, if the action to extend is against a personal representative of a decedent, the motion to extend must be brought within two years of that individual's qualification, the extension can only be granted for two additional years from the date the motion is filed, and there can only be one extension.

4. Judgment Entered in District Court. For a judgment entered in a general district court, no execution may be issued or action brought on the judgment in the district court more than 10 years after the date of the judgment. ²⁰⁹ However, if the general district court judgment is docketed in the circuit court pursuant to section 16.1-69.55, an execution may be issued for an additional period of 10 years in any circuit court in which the judgment is docketed. ²¹⁰

Additionally, if the abstract of judgment was properly and timely filed in the circuit court of the jurisdiction in which the general district court judgment was granted, at the end of 10 years an abstract of the circuit court judgment may be filed in the general district court, and executions may issue thereon until the expiration of the recorded circuit court judgment (20 years from the original judgment date).

E. Order of Liability of Real Estate Conveyed by the Debtor After the Judgment Lien Has Attached. Real estate subject to the judgment lien is liable to satisfy the judgment in the following order:

1.	Land retained by the judgment debtor should be used first to satisfy the judgment; and
2.	If land currently owned by the debtor is insufficient to satisfy the judgment, land that has been conveyed is secondarily liable:

[Page 1298]

	a.	Land that was sold last shall be first liable and so forth in inverse order of alienation until the whole judgment is satisfied;
	b.	Land that the judgment debtor gave away shall be liable before land that was conveyed for value;
	c.	Lands that were conveyed contemporaneously are liable pro rata; and
3.	A purchaser for value from a donee occupies the same position he or she would have occupied had the purchase been made from the judgment debtor at the time the purchase was made from the donee. 211

F. Protection of a Junior Lienor. If there are subordinate liens, the judgment lienholder must proceed against the property in a way that protects the security of the junior lienors, where possible. If the judgment debtor owns two parcels of property that are subject to the judgment lien and one of the parcels is subject to a junior lien, the judgment creditor can be forced to proceed against the parcel that is free of junior liens in order to satisfy the judgment lien. ²¹²

G. Release of the Judgment Lien. The creditor, or the creditor's agent or attorney, must release a docketed judgment within 30 days from the date it is satisfied, unless the satisfaction appears on the return of any execution to the office of the clerk. If the judgment has not been docketed, the release must be made on the execution book in the general district court clerk's office. After 90 days from satisfaction or after 10 days' notice by the judgment debtor, the failure to release the judgment will subject the judgment creditor to a fine of $100 plus the filing cost of the release. The cost of the release must be paid by the debtor. ²¹³ For any money judgment marked as satisfied pursuant to section 8.01-454, nothing in that section satisfies an unexecuted order of possession entered pursuant to section 8.01-126. The creditor must be certain to release the judgment in all jurisdictions in which it has been docketed if it has been docketed in more than one jurisdiction.

[Page 1299]

9.304 Execution Against Tangible Personal Property.

A. Types of Execution.

1. Writ of Possession. The writ of possession is a detinue action. It issues on a judgment for specific personal property as in detinue. ²¹⁴ A writ of possession also will lie for the recovery of specific real property in cases of unlawful entry and detainer and ejectment. ²¹⁵

2. Fieri Facias. A writ of fieri facias will issue on a judgment for money. This writ is an order from the court to the sheriff or other appropriate officer commanding the officer to satisfy the plaintiff's judgment from the goods and chattels of the defendant. ²¹⁶

B. When Execution Can Issue. The circuit court clerk will issue execution on a judgment for money after 21 days from the date of the entry of the judgment when requested to do so by the judgment creditor or the judgment creditor's assignee or attorney. For good cause, the court may order execution to issue at an earlier period. ²¹⁷ In issuing the writ, the clerk must attach the exemption claims form required by section 8.01-546.1 of the Virginia Code.

In the general district court, upon entry of the judgment, a writ...