There is almost nothing scarier than being served with a lawsuit or other court papers by the Sheriff. Even as a seasoned lawyer, the sight of the Sheriff with a lawsuit causes my heart to race just a little faster. It's one of those defining moments that signals that a legal battle has begun.
Last week we had a client who was served with a Writ of Fieri Facias. Now this is unusual because a Writ of Fieri Facias is not the signal of a lawsuit, it's not the initial shot fired over the bow between the parties- it's the nail in the coffin. As a business owner or individual - your whole goal is to ensure your lawsuit never gets to this stage. Why? Unlike a typical lawsuit - a Writ of Fieri Facias is not the demand for payment - rather it is the procedure that allows a creditor who has already obtained a money judgement against you, to begin to garnish or seize your property.
If your lawsuit has gotten to this stage - you have either been specifically ignoring all prior service attempts by the Sheriff, or you truly never received notice that the original law suit was filed. Either way - this is not the creditor's problem: this is now your problem. This article provides a brief overview of the Writ and what you need to do immediately upon receiving one.
What is a Writ of Fieri Facias? It's a written command issued by a Louisiana court to a sheriff to obtain the amount of a money judgment out of the property of a judgment debtor. “Fieri Facias” means “you should cause (it) to be done,” and in modern parlance the Writ is also referred to as the “Writ of Execution.”
While the Writ itself specifically references tangible personal property, it also allows the judgment creditor to pursue the debtor's intangible personal property – e.g., bank accounts, accounts receivable, bonds, notes, stock shares, copyrights, patents, franchises, trademarks, and legal causes of action. Obtaining the Writ is a prerequisite for many judgment-collection remedies, such as garnishments, debtor interrogatories, and court-ordered turnover of property and failure to obtain the Writ can render those remedies invalid.
The Writ is issued by the clerk of the court that entered the judgment upon the request of the judgment creditor. Upon receipt of the Writ, the sheriff can “levy” on the judgment debtor's tangible personal property by taking possession of it or otherwise exercising control over it. The sheriff's levy creates a lien on the property in favor of the judgment creditor, and the lien can be satisfied through the sheriff's sale of the property and the turnover of the sale proceeds (less costs of sale) to the creditor.
Further, upon the sheriff's receipt of the Writ, a lien in the creditor's favor automatically attaches to the debtor's intangible property held either by the debtor or by a third party for the debtor anywhere in Louisiana. The lien on the intangible property becomes binding on the third party once he/she receives legal notice of the Writ. Once in place, the lien on intangible property lasts for one year from the original return date on the Writ. The Writ can be reissued upon the creditor's request, thereby extending the life of the lien.
If you have received a Writ of Fieri Facias - you are already behind the 8-ball and your attorney will be fighting an uphill battle. But there are still arguments to be made on your behalf and legal strategies you can employ to reverse the money judgment and halt the creditors collection actions. If you have assets to protect, like our home, cars, or bank accounts - you need to immediately engage an attorney.
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