Debtors need to be proactive when writ of execution is issued to seize their property
Filing bankruptcy is not a passive process. It requires people who need relief from the U.S. Bankruptcy Court to be active in their case, stay informed about their obligations and respond to any creditor actions filed against them.
That includes the handling of bill collections that occur before bankruptcy and have the potential to be stopped by an automatic stay once the petition is filed. In some cases, debtors may be faced with a writ of execution, a court order that allows property or personal belongings to be confiscated by the creditor through the authorities.
Typically, a sheriff, local constable or a U.S. Marshal is dispatched to notify debtors of this action. They serve the writ with the intent of seizing property so it can be sold to pay off a delinquent bill or loan.
However, the law provides individuals with an opportunity to halt or delay the collection process before a writ is served.
It begins when a creditor files a lawsuit to obtain payment for a debt, and the debtor is notified of the court action. At this point, the individual should respond, and attend the hearing that is set to review the complaint. If the person isn't in attendance, a default judgment will be filed in favor of the creditor.
"Basically, [the writ] is a court order from the judge allowing the sheriff to take possession of any assets you may have on hand," writes North Carolina attorney Damon Duncan on his law firm's website. "In other words, due to your absence, the judge automatically awards the creditor the right to pursue the funds owed."
Before confiscation can take place, debtors are also notified of a motion to exempt property from the court order. They have 20 days to file an exemption claim with the court. If debtors don't respond, the process will continue in favor of the creditor's collection effort.
Following this period, a writ of execution is issued by a judge that allows the sheriff to go to a debtor's residence with the intent of seizing property. One way to delay the confiscation is to inform the official that a bankruptcy filing is planned.
Soon after, however, the law enforcement agency must be provided with a bankruptcy case number to prove it has been filed and an automatic stay is in effect to halt further collection.
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