A writ of execution will be delivered by the sheriff. Basically, it is a court order from the judge allowing the sheriff to take possession of any assets you may have on hand. Why is this happening to you? A writ of execution is filed after a judgment has been issued against you in favor of the plaintiff, such as a credit card company or other creditor.
Let us break down the entire process with an example:
Creditor X has filed a civil summons (lawsuit) against you, concerning a credit card account you have with them that you have been unable to make payments on. They have sent you settlement offers, and have now hired an attorney to sue you. You have been “served” when you receive the lawsuit either by mail or service by a deputy sheriff. When you receive a lawsuit you should respond in the legally required manner. This requires that you file a legal answer with the court within 30 calendar days of being served the lawsuit. You must also give notice by mail to the attorney for the creditor that is suing you. Do not just call up the attorney for the creditor asking to work out a payment plan or to give you additional time to pay the balance. Creditor attorneys love for you to do this. This is not a sufficient answer to the court. By filing the legal answer with the court, it will buy you some time. Eventually, a court hearing is set. If you do not owe the debt in question, it is up to you to attend this hearing. This is when you would provide proof to the judge that you do not owe this debt. However, if you choose to not attend the hearing, a default judgment will be entered in your case. In other words, due to your absence, the judge automatically awards the plaintiff, Creditor X, the right to pursue the funds owed. This is known as a default judgment award.
The next important piece of mail you will receive will be a motion to exempt property or designate exemptions. This is also sometimes called a Notice of Right to Have Exemptions Designated. This is a form that you must fill out and return to the court. By properly filling out this form you can exempt or protect some of the property that you own under North Carolina state law.
When most people receive the notice of right to have exemptions designated form, they throw it in the trash. By not legally filing this paperwork with the court, none of your property is protected. In theory, the Sheriff’s office could seize all your property and sell it at a Sheriff’s auction. Again, it is imperative you respond to this! You usually have 20 days to do so. At this point, Creditor X has a judgment against you and is looking for retribution. Their lawyers will request a writ of execution from the judge. This is when the sheriff gets involved and makes an appearance at your doorstep trying to collect nonexempt property from you to sell at a Sheriff’s auction. The sheriff can also levy or seize your bank accounts.
The Sheriff’s at the door, what do I tell them?
First, you should always answer the door. Avoiding the sheriff may make your situation worse. You may ask the sheriff for more time to come up with the money owed or for time to file bankruptcy. It is not a guarantee that the sheriff will grant you an extension, but it is worth asking. If you tell the sheriff you are filing for bankruptcy then make sure you follow through because the sheriff will need a case number within a short time frame showing you have filed bankruptcy. Remember, filing for bankruptcy can be an extensive time-consuming process and requires payment before you file a petition. An emergency bankruptcy is always a possibility but there are more fees associated with the emergency filing of a bankruptcy. Hopefully, you have spoken to a bankruptcy attorney before this point. If you have not, you should call one, like Duncan Law.
If you don’t file a bankruptcy or settle the lawsuit, the Sheriff will have the ability to seize any non-exempt property and they may use that property to sell at an auction to try to satisfy Creditor X’s judgment against you. You don’t want your property seized though, so be sure to act before this time comes. Not only do you lose property but you also have to deal with the embarrassment of having the Sheriff come to your door to take the property. If you have any questions on how we can help, please feel free to give us a call.
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What if defendant is an LLC in NC, who hasn’t deigned to reply to NCDoJ Consumer protection letters? I’d assume only corporate assets and not those of the owners?
I was just served a writ on my house I have filed bankrupt I am disabled an divorced what can I do to keep my home
Ray,
It really depends on the detail of your situation. You said you have filed bankruptcy but I don’t know when and the type you filed. Under section 362 of the bankruptcy code when you file a bankruptcy it enacts an automatic stay which should help you stop any pending foreclosures.