Judicial Sale

Author:Jeffrey Lehman, Shirelle Phelps

Page 59

The transfer of title to and possession of a debtor's property to another in exchange for a price determined in proceedings that are conducted under a judgment or an order of court by an officer duly appointed and commissioned to do so.

A judicial sale is a method plaintiffs use to enforce a judgment. When a plaintiff wins a judgment against a defendant in civil court, and the defendant does not pay the judgment, the plaintiff can force the sale of the defendant's property until the judgment is satisfied. The plaintiff forces the sale by filing in court for an execution on property, which is a seizure of property by the court for the purpose of selling the property.

Judicial sales are regulated by state and federal statute. In Alabama, for example, the judicial sale process begins when a judgment remains unpaid ninety days after it is placed on the record by the court (Ala. Code § 6-9-21 [1995]). The plaintiff must bring an order mandating payment of the judgment and court costs to the county where the defendant's property is located. This order is called a writ of execution, and it is issued by the trial court. A writ of execution identifies the amount of the judgment, interest, and court costs that the defendant owes the plaintiff.

Generally, a writ of execution may be levied against any real property or PERSONAL PROPERTY of the defendant. The plaintiff must file the writ of execution with the probate judge in the county where the defendant's property is located. The plaintiff must also give notice of the execution on the defendant's property to the defendant. Once the writ is filed, the plaintiff has a lien on the defendant's property. A lien gives the plaintiff a legally recognized ownership interest in the defendant's property, equal to the amount of the judgment.

Once the plaintiff has obtained a lien on the defendant's property, the judicial sale can begin. The...

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