Real Property Levy Guide

Transcription

1 Real Property Levy Guide How to use this Guide 1. Become familiar with conducting a basic (or fundamental) real property levy as described in Category C of this Guide. Category C serves as the standard or core example of a levy upon real property interest. It is considered to be the most basic or common type of real property levy, uncomplicated by such things as redemption rights, dwelling considerations, statutory time reductions, etc. Therefore, it is paramount that levy personnel become familiar with statutes relevant to this standard example. The remaining categories listed in this Guide (Categories A, B, D, E, F, G, H, I, J, K and L) will describe only the variations to Category C. 2. Using the list below, identify the real property levy Category applicable to your specific case. 3. Apply the applicable Category variation. Writ of Attachment = Category A Writ of Execution To levy and sell the judgment debtor s... (select 1 or 2) 1. real property interest of the judgment debtor who is a... (select 3 or 4) 2. interest in a leasehold estate with... (select 2a or 2b) 2a. less than two years remaining on lease. = Category B 2b. more than two years remaining on lease, and the judgment debtor, is a... (select 3 or 4) 3. business entity (i.e., corporation, partnership, etc.). = Category C 4. natural person (living human being), and the real property... (select 4a or 4b) 4a. contains a dwelling. = Category D 4b. does not contain a dwelling. = Category C Writ of Sale To partition (divide) the interest of persons in real property. = Category E To foreclose a... (select 1, 2, 3, 4, or 5) 1. mortgage or deed of trust... (select a or b ) a. on real property, and... (select e or f ) b. leasehold estate with... (select c or d ) c. less than two years remaining on lease. = Category F d. more than two years remaining on lease, and... (select. e or f ) e. deficiency judgment is waived or prohibited. = Category G f. deficiency judgment may be ordered. = Category H 2. special assessment property tax or Mello-Roos tax lien. = Category I 3. assessment lien by an association or common interest development. = Category J 4. mechanics lien (labor or improvements to real property). = Category K 5. other lien(s) on real property. = Category L 6.38 (Rev. 2002)

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3 CATEGORY A: WRIT OF ATTACHMENT Note: All levy procedures, including the return of the writ to court, must be completed not later than 60 days from when the writ was received by the levying officer. [CCP ] DESCRIPTION: The purpose of the levy is to create an attachment lien on real property. Unless sooner released or discharged, the attachment lien period remains in effect for three years from the date of issuance of the writ and may only be extended upon noticed motion and court order. If the attachment lien period is extended by order of court, the levying officer may be required to record notice of the order with the county recorder. [CCP ] Real property interest is not sold under attachment. The contents of the writ must conform to the requirements of CCP If the defendant is a natural person, the real property will be specifically described on the writ itself (or attachment to the writ). If the defendant is a corporation, partnership or unincorporated association, all property of the defendant entity is subject to attachment, and, therefore, the specific real property description will only appear in the plaintiff s written instructions. PLAINTIFF S INSTRUCTIONS: The instructions need to direct the levying officer to take action pursuant to the accompanying writ. Phrases that include the words, levy upon, attach or enforce the writ, are sufficient to require the levying officer to act. List the name(s) and last known address(s) of the defendant(s) WHOSE INTEREST in the real property is subject to the attachment. Note: If the defendant is a natural person, this information may also be found at item 3 of the writ of attachment. List the name(s) and address(s) of any third persons having an interest in the real property. Note: If the defendant is a natural person, this information may also be found at item 3 of the writ of attachment. Legal description of the property. Note: When the defendant is a natural person, the legal description usually appears on the writ (or a separate page referenced by the writ). When the defendant is a business entity, i.e., corporation, partnership or other unincorporated association, the legal description might only be described in the plaintiff s written instructions. The legal description must be suitable for recording purposes. A legal description may be rejected by the county recorder if not completely legible. Caution: Retyping a lengthy legal description is risky and invites error. It is the plaintiff s responsibility to provide the levying officer with a clear and legible legal description. If the summons and complaint has not previously been served on the defendant, the plaintiff s instructions must direct the levying officer to make service of the summons and complaint at the same time the levying officer serves the defendant with a copy of the writ of attachment. [CCP (c)] A writ of attachment anticipates that the plaintiff will probably prevail in the lawsuit resulting in a money judgment being entered against the defendant. Therefore, the following information is needed to levy against a judgment debtor s interest in the real property when the writ of execution is subsequently issued: Make a statement as to whether, or not, the real property is (or contains) a dwelling. However, a levy pursuant to a writ of attachment does not require the plaintiff to apply for an order for sale of a dwelling.

4 Include a statement as to whether, or not, the real property is a leasehold estate. [CCP (b)] Note: A leasehold estate is also referred to as an estate for years, or leasehold interest in real property. If the real property is a leasehold estate, the plaintiff must also indicate the total number of years remaining on the lease or the exact expiration date of the lease (preferable). Common street address (if any). Note: If the plaintiff subsequently obtains a money judgment, the street address or other common designation must appear on the sale notice (on an execution sale) together with the legal description. [CCP (a)] Note: A description of the property that is subject to the attachment is contained on the writ itself. However, when the defendant is a corporation, partnership or unincorporated association, the writ will often broadly describe the property as... All property of defendant for which a method of levy is provided. [CCP ] Under these circumstances, specific property to be attached should be entered on the Notice of Attachment itself. Judicial Council Form AT- 165 (Rev. January 1, 2000 or later) provides an area for the description to be entered. If the legal description of the real property will not fit in the area provided on the Notice of Attachment, make reference to an attached sheet containing the legal description. The documents to be recorded with the county recorder are... Notice of Attachment - include any referenced document that includes the description of the property, and/or lists additional name(s)/address(s) of third person(s) having a recorded interest in the real property. a copy of the Writ of Attachment - include any referenced document that includes the description of the property, and/or lists additional name(s)/address(s) of third person(s) having a recorded interest in the real property. a copy of the Order for Issuance of Writ of Attachment SERVICE ON DEFENDANT: Photocopies of the same documents used for recording may also be used for service upon the defendant. Service upon the defendant may be achieved by either personal service or by mail (mailing is the usual method used). SERVICE ON THIRD PERSONS: Except for the personalized Notice of Attachment, photocopies of the Writ of Attachment and Order for Issuance used for recording may be used for service upon third persons. Service may be achieved by either personal service or by mail (mailing is the usual method used). Note: A third person is an entity or person who is not a defendant, but has a recorded interest in the real property. A third person is sometimes referred to as a record owner". The name(s) and address(s) of third persons are listed on the face of the Writ of Attachment at item #6. Although third person information may appear on the face of the writ itself, make a written request to the plaintiff for any additional third person name and address information. If the plaintiff identifies additional third persons, be sure the process is also served or mailed to them. WRIT RETURN: Use Form (RPLG-13) Return on Real Estate Levy for the return of the writ of attachment to the court.

5 CATEGORY B: WRIT OF EXECUTION (Money Judgment) Interest in leasehold estate with term of less than two years remaining on the lease. The term "real property" includes any right in real property, including, but not limited to, a leasehold interest in real property. [CCP ] Note: Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ [CCP (b)] The contents of the writ must conform to the requirements of CCP DESCRIPTION: The 120-day waiting period pursuant to CCP is not applicable. [CCP ] The requirement for an order for sale of a dwelling pursuant to CCP , is not applicable. [CCP ] Any claim of exemption shall be made and determined pursuant to CCP et seq. [CCP ] A judgment lien on real property does not reach a leasehold estate with an unexpired term of less than two years. [CCP ] CREDITOR S INSTRUCTIONS: The instructions will identify the property as a leasehold interest in real property (may be referred to as a "leasehold estate", or "estate for years"). The instructions must further indicate the expiration date of the lease. The two years relates to the span of time between the commencements of levy (date of recording) to the date of expiration of the lease. SALE: The sale notice should reflect the minimum bid amount (if any) pursuant to CCP Distribute the proceeds in conformance with CCP

6 CATEGORY C: WRIT OF EXECUTION (Money Judgment) Real property interest or interest in leasehold estate with term of more than two years remaining on the lease, and the judgment debtor is not a natural person, or the judgment debtor is a natural person, and the real property does not contain a dwelling. The term "real property" includes any right in real property, including, but not limited to, a leasehold interest in real property. [CCP ] Note: Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ [CCP (b)] The contents of the writ must conform to the requirements of CCP DESCRIPTION: Category C will serve as the standard or core example of a levy upon real property interest. It is considered to be the most basic or common type of real property levy, uncomplicated by such things as redemption rights, dwelling considerations, statutory time reductions, etc. Therefore, it is paramount that levy personnel become familiar with statutes relevant to this standard example. The remaining categories listed in this Guide (Categories A, B, D, E, F, G, H, I, J, K and L) describe only the variations to this standard example. CREDITOR S INSTRUCTIONS: The instructions need to direct the levying officer take action pursuant to the accompanying writ. Phrases that include the words, levy upon or enforce the writ, are sufficient to require the levying officer to act. List the name(s) and last known address(s) of the judgment debtor(s) WHOSE INTEREST in the real property is being levied upon. [CCP (a) & CCP ] List the name(s) and address(s) of any third persons having an interest in the real property. [CCP (a), ] If the judgment debtor (whose interest in the real property is to be levied upon) is a natural person, the creditor s instructions must indicate that the real property is not (or does not contain) a dwelling. Legal description of the property. The legal description must be suitable for recording purposes. A legal description may be rejected by the county recorder if not completely legible. Caution: Retyping a lengthy legal description is risky and invites error. It is the plaintiff s responsibility to provide the levying officer with a clear, legible legal description. Common street address (if any). Note: If the real property has a street address or other common designation, it must appear on the sale notice together with the legal description. [CCP (a)] PREPARE a Notice of Levy for RECORDING with the county recorder. On the Notice of Levy form, enter the name of the judgment debtor after the words... TO THE PERSON NOTIFIED (name): The Notice of Levy must contain the legal description of the property (include the common street designation if applicable). Often, the legal description is lengthy and must be displayed on an attached sheet. If so, the Notice of Levy must make reference to this attachment. Avoid re-typing a lengthy legal description. Whenever practical, utilize the portion of the document provided by the judgment creditor that contains the legal description. The Notice of Levy to be recorded with the county recorder must also identify the name(s) and address(s) of any third person(s) having interest in the real property (as identified by the creditor).

7 The documents to be recorded with the county recorder are... - Notice of Levy (include any referenced document that includes the description of the property, and/or lists additional name(s)/address(s) of third person(s) having a recorded interest in the real property). Be sure to check the box (just below the case title information) to indicate the type of writ being used. - a copy of the Writ of Execution (if applicable, include Attachment 20 that accompanies the writ). RECORD with all of the listed documents with the County Recorder. Note: The recording may be achieved by delivering the documents personally or by mail. Be sure to include the appropriate Recorder's fees, and indicate your office name and address for the person to whom the document is to be returned after recording. ENTER the date of recording (as evidenced by the recorder s stamp) on each Notice of Levy that will subsequently be served, mailed or posted. SERVICE ON THE JUDGMENT DEBTOR: When you have knowledge of the date of recording... PREPARE and assemble process to be served upon the judgment debtor. Photocopies of the documents used for recording may also be used for service upon the judgment debtor. Note: There may be several judgment debtors listed on the writ. It is only necessary to serve the judgment debtor(s) WHOSE INTEREST in the real property is being levied upon. The documents to be served (or mailed) to the judgment debtor are... - Notice of Levy (include any referenced document that includes the description of the property, and/or lists additional name(s)/address(s) of third person(s) having a recorded interest in the real property); and - a copy of the Writ of Execution; - If the judgment debtor is a natural person, include Judicial Council Form EJ-155, Exemptions From the Enforcement of Judgments. - Any Affidavit of Identity, as defined in CCP Note: Service upon the judgment debtor may be achieved by either personal service or mail (mail is the usual method used). SERVICE ON THIRD PERSONS: PREPARE a personalized Notice of Levy to be served (or mailing) to each third person. Note: A third person is an entity or person who is not a judgment debtor, but has a recorded interest in the real property. A third person is sometimes referred to as a record owner"). It is important that a request for third person information is made during the initial stage of the levy. The pre-printed instruction form (RPLG-01) solicits this information from the creditor. However, if this form is not being used, make a written request to the creditor to provide this information.

8 The documents to be served (or mailed) to the third person(s) are... - Notice of Levy (include any referenced document that includes the description of the property, and/or lists additional name(s)/address(s) of third person(s) having a recorded interest in the real property); and - a copy of the Writ and any referenced document. Service upon third persons may be achieved either by personal service or by mail (mailing is the usual method used). REQUIRED POSTINGS: EXAMINE the Assessor s map to determine how many services and postings will be required. Copies of the service documents must be posted on each additional continuous unbroken tract. Manmade features, such as alley-ways, railroad tracks, canals, etc., will divide (break) parcels into sections requiring additional postings. PREPARE a Writ and Notice of Levy for service on an occupant. Make a notation on the trip ticket instructing the field personnel to... "Serve occupant. Post if no occupant present." Note:... Only one attempt to serve an occupant is necessary. If no occupant is present at the time service is attempted, the Writ and Notice must be posted on a conspicuous place on the real property. PREPARE (if applicable) a copy of the Writ and Notice for the posting of each additional continuous unbroken tract (as can be determined by the Assessor's map). FORWARD these prepared documents to the field staff for service and posting. WHEN NOTICE OF SALE MAY BE GIVEN: DETERMINE the date when the notice of sale may be given. Notice of sale may not be given until the expiration of 120 days after the date Notice of Levy was served on the judgment debtor. If service of the Notice of Levy upon the debtor was effected by mail, add the applicable mail time extension. Note: The term given is a reference to when you may begin giving notice of sale, i.e.- serve, mail, post and publish. Mail time extensions: If mailed to an address in California, add five days. If mailed to an address outside California, but within the United States, add ten days. If mailed to an address outside the United States, add twenty days Formula: 120 days + mail time extension = days. Add this number of days to the date the notice of levy and writ was mailed the judgment debtor(s). PREPARE the notice of sale WHEN days + mail time extension has passed from the date the Notice of Levy was served upon the debtor; and the creditor has provided lienholder information OR a written statement that there are no lienholders.

9 Notice of Sheriff s Sale (RPLG-06) should be used. DETERMINE the date of sale. Keep in mind that the sale notice must be published in a newspaper of general circulation, once a week for three (3) successive weeks with at least five days intervening between the respective publication dates. The FIRST publication must appear at least twenty (20) days prior to the scheduled sale. Be sure to allow enough time for all these events to occur. The time of sale must be set between the hours of 0900 and 1700 hours. Consult with supervision when arranging a sale date. The notice of sale should include any disclosures and minimum bid requirements as can be determined at the time the notice is prepared. You may rely upon the creditor's information as it relates to state tax lien amounts. DETERMINE the minimum bid requirement to be included on the sale notice. The requirements for minimum bids are established by CCP The amount bid on the real property must exceed the total of the following amounts: - preferred labor claims; - state tax liens (as defined in Government Code 7162) that is superior to the creditor's lien (make written request that the creditor provide you with the current amount of any state tax lien. PREPARE a trip ticket and attach a copy of the notice of sale for delivery to the appropriate publisher. The sale notice must be published in a newspaper of general circulation, once a week for three (3) successive weeks with at least five days intervening between the respective publication dates. The FIRST publication must appear at least twenty (20) days prior to the scheduled sale. Be sure the publisher receives the sale notice in sufficient time for publishing. Attach a Request for Legal Publishing (RPLG-08) indicating necessary publication dates. MAIL a copy of the Notice of Sale to each of the following: judgment debtor; judgment creditor; all lienholders (per list provided by creditor); to any person(s) listed on the reverse side of the writ at item #7; to any person(s) who has requested notification of the sale (personally or in writing) PREPARE a trip ticket and attach a copy of the notice of sale for POSTING for each of the following places: one public place in the city where the sale will be conducted. If the sale will not be conducted in a city, then within the judicial district where the sale will be conducted. a conspicuous place on the real property, and each additional continuous unbroken tract, lot, etc., as can be determined by the Assessor's map. PREPARE a trip ticket and attach a copy of the notice of sale for PERSONAL SERVICE of an occupant of the real property. A note on the trip ticket to the field deputy should indicate, "MAKE ONE ATTEMPT TO SERVE AN OCCUPANT." SALE: After the successful bidder pays the total of the amount bid... DISTRIBUTE the proceeds as directed by CCP PREPARE the Sheriff's Deed (RPLG-10). (The Sheriff's Deed should be altered to reflect the correct writ or tax warrant process);

10 PROVIDE the buyer with (and have him/her fill-out) a Preliminary Change of Ownership Report (PCOR). [Rev & TC 480.3]; RECORD a copy of the deed with the County Recorder and deliver the original deed to the purchaser. [CCP ] Note: Many counties impose a documentary transfer tax to be paid at the time the deed is recorded. [Rev & TC et seq.] PREPARE the writ return (RPLG-11); RETURN the writ to court. RELEASE: In cases where the property is released (for whatever reason) prior to sale, forms (RPLG-14) Sheriff s Release of Levy on Real Estate, and (RPLG-13) Return on Real Estate Levy should be used for this purpose.

11 CATEGORY D: WRIT OF EXECUTION (Money Judgment) Real property interest or interest in leasehold estate with term of more than two years remaining on the lease. Judgment debtor is a natural person and the real property is (or contains) a dwelling. Note: Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ. [CCP (b)] The contents of the writ must conform to the requirements of CCP DESCRIPTION: An execution levy upon the principle dwelling of a judgment debtor (who is a natural person), will require that the creditor obtain a court order to sell the real property. A noticed hearing procedure is required to determine whether, or not, the dwelling is subject to a homestead exemption and insure that the judgment debtor receives the amount of the exemption at execution sale. A levy upon a dwelling triggers a requirement for the levying officer to give notice to the creditor to apply to the court for an order to sale the dwelling. The definition of a dwelling is described in CCP CREDITOR S INSTRUCTIONS: The creditor s instructions will also include... a statement that the real property is (or contains) a dwelling. Common street address. Note: The street address or other common designation must appear on the sale notice together with the legal description. [CCP (a)] MAIL to the judgment creditor the Request for Application for Order for Sale (RPLG-02). The creditor has 20 calendar days (plus the additional mail time extensions), from the date you mail this notice, to file with our office, a copy of the (court filed) Application. The copy being presented to you should bear the court s file stamp to indicate that the creditor has, first, filed the application with the court. DETERMINE the last day for the creditor to file with the levying officer a copy of the Application for an Order for Sale of the Dwelling (20 days plus mail time extension). CALENDAR this date for the purpose of re-checking the file for timely compliance. If the creditor does not file the Application with our office on or before this date, CCP requires that the levying officer release the property. Mail time extensions: If mailed to an address in California, add five days. If mailed to an address outside California, but within the United States, add ten days. If mailed to an address outside the United States, add twenty days. ORDER FOR SALE When the certified copy of the Order for Sale is received, EXAMINE the Order to determine which of the following individuals appeared at the hearing: debtor debtor's spouse attorney for the debtor attorney for debtor's spouse

12 If none of the above listed individuals appeared at the hearing, it would be unusual for the levying officer to have received the Order for Sale until after a re-hearing, as prescribed by CCP , has been concluded. This proceeding for re-hearing is sometimes referred to as the "second chance" hearing. Under usual circumstances, you would have been alerted to the commencement of this rehearing by first receiving from the creditor proof(s) of service of the prescribed notices to the debtor and the debtor's spouse. Examine, further, the Order for Sale to determine whether there is any reference to a second chance hearing. General description of the second chance hearing procedure: If the judgment debtor or judgment debtor s spouse did not appear at the hearing either personally or by legal counsel, the judgment creditor must (within 10 days of the date of the Order for Sale) serve a copy of the Order and the notice of the order "Declaration for Re-Hearing on Homestead Exemption" on the debtor and the debtor's spouse. The creditor must comply with the service requirements described in CCP The judgment creditor must file proof of service with both the court and levying officer. Service by the creditor must be made within 10 days of the date indicated on the Order of Sale. Within 10 days after service of the notice of the order, the debtor, or spouse, can file with the levying officer a declaration of absence (reason for non-appearance). The levying officer shall transmit the declaration to the court forthwith. Upon receipt of the declaration, the court shall set a time and place for hearing to determine whether the determinations of the court should be modified. The time set for hearing shall be not later than 20 days after receipt of the declaration. The court clerk shall cause notice of the hearing promptly to be given to the parties. The levying officer must not proceed to sale until the court makes its determination on motion. CONTENTS OF THE ORDER FOR SALE: If the court determines that the dwelling is exempt, the court shall determine the amount of the homestead exemption and the fair market value of the dwelling. Unless the court determines that the sale of the dwelling is not likely to produce a bid sufficient to satisfy any part of the amount due on the judgment, the court shall make an order for sale of the dwelling subject to the homestead exemption. If no bid at the sale exceeds 90% or more of the fair market value, the homestead shall not be sold unless... the court subsequently grants permission to accept the highest bid that exceeds the amount of the homestead exemption and all liens and encumbrances on the property, or the court makes a new order for sale of the homestead. The order for sale of the dwelling subject to the homestead exemption shall specify the amount of the proceeds of the sale that is to be distributed to each person having a lien or encumbrance on the dwelling and shall include the name and address of each such person. The proceeds of the sale will be distributed as directed in the court s order for sale. If the court determines that the dwelling is not exempt, the court shall make an order for sale of the property in the manner provided in Article 6 (commencing with Section ) of Chapter 3. The court clerk is required to transmit a certified copy of the court order to the levying officer. SALE: The sale notice should reflect the minimum bid amount.

13 If the court determines that the dwelling is exempt, the minimum bid will be set by the court and stated in the order for sale. The proceeds of the sale will be distribute in conformance to the Court Order for Sale of the Dwelling and CCP If the court determines that the dwelling in not exempt, the minimum bid amount is governed by CCP , and distribution of the proceeds are governed by CCP

14 CATEGORY E: WRIT OF SALE To partition (divide) the interest of persons in real property. Note: The writ of sale delivered to the levying officer shall be accompanied by a certified copy of the judgment for sale. [CCP (c)] Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ. [CCP (b)] The contents of the writ must conform to the requirements of both CCP & (b). DESCRIPTION: The purpose of an action for partition is to divide the property between co-owners or co-proprietors severing the unity of possession. Such an action does not always result in the sale of property. However, if the court determines such relief is justified, the court may order the sale of the property directing the proceeds of the sale be applied as stated in the judgment. Statutes governing actions for partition are contained in CCP et seq. Unless otherwise ordered by the court, the notice of sale on real property is given in the same manner as in execution. [CCP ] Unless the judgment recites otherwise, the 120-day waiting period before giving notice of sale is applicable. [CCP (b) & ] The court may also require that additional information be included in the notice of sale. [CCP ] Therefore, it is important that you examine the language contained in the judgment for specifics regarding how the sale is to proceed and any additional information to be included in the sale notice. Examine the certified copy of the judgment to determine if time reductions are indicated, or if special language must appear in the sale notice, etc. Levy and sell the property in the same manner as under a writ of execution (Category C) applying variations, if any, as indicated by the judgment for sale. DISCUSSION: The judgment debtor is not entitled to claim an exemption for property levied upon under a judgment for the sale of property. [CCP ] However, the judgment debtor may claim available exemptions for property levied upon to satisfy damages or costs awarded in such a judgment. Therefore, if the judgment debtor files a claim of exemption, the levying officer should simply accept the claim and process it in the same manner as in execution, thus allowing the court to make a determination. CREDITOR S INSTRUCTIONS: The application for sale of a dwelling procedure is not applicable under a writ of sale. Therefore, it is not necessary for the creditor to provide dwelling statements. Since the writ and judgment for sale both contain the legal description, the creditor s instructions do not need to restate the legal description. SALE: Remove any references to Section CCP and a right of redemption from the sale notice. The sale notice should reflect the minimum bid amount (if any) pursuant to CCP Distribute the proceeds as directed in the judgment for sale.

15 CATEGORY F: WRIT OF SALE Foreclosure of a mortgage or deed of trust. Real property or leasehold estate with term of less than two years remaining on the lease. The term "real property" includes any right in real property, including, but not limited to, a leasehold interest in real property. [CCP ] Note: The writ of sale delivered to the levying officer shall be accompanied by a certified copy of the judgment for sale [CCP (c)] The judgment for sale may also be referred to as a decree of foreclosure and order for sale. Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ. [CCP (b)] The contents of the writ must conform to the requirements of both CCP & (b). DESCRIPTION: The right of redemption is not applicable. [CCP (a)] The 120 delay for giving notice of sale is not applicable. [CCP ] In an action to foreclose a mortgage or deed of trust, the court may direct the sale of the real property and require the proceeds of the sale to the payment of costs of court, expenses of levy and sale, and the amount due the plaintiff, to include attorney s fees when such fees are provided for in the mortgage. [CCP 726(a)] DISCUSSION: The judgment debtor is not entitled to claim an exemption for property levied upon under a judgment for the sale of property. [CCP ] However, the judgment debtor may claim available exemptions for property levied upon to satisfy damages or costs awarded in such a judgment. Therefore, if the judgment debtor files a claim of exemption, the levying officer should simply accept the claim and process it in the same manner as in execution, thus allowing the court to make a determination. CREDITOR S INSTRUCTIONS: The application for sale of a dwelling procedure is not applicable under a writ of sale. Therefore, it is not necessary for the creditor to provide dwelling statements. Since the writ and judgment for sale both contain the legal description, the creditor s instructions do not need to restate the legal description. SALE: Remove any references to Section CCP and a right of redemption from the sale notice. The sale notice should reflect the minimum bid amount (if any) pursuant to CCP Distribute the proceeds as directed in the judgment for sale.

16 CATEGORY G: WRIT OF SALE Foreclosure of a mortgage or deed of trust. Real property or leasehold estate with a term of more than two years remaining on the lease. Deficiency judgment is waived or prohibited. Note: The writ of sale delivered to the levying officer shall be accompanied by a certified copy of the judgment for sale. [CCP (c)] The judgment for sale may also be referred to as a decree of foreclosure and order for sale. Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ. [CCP (b)] The contents of the writ must conform to the requirements of both CCP & (b). If the decree of foreclosure is not clear, or is ambiguous as to whether a right of redemption is applicable, contact the creditor for written clarification on this issue. The Clarification of Sale letter (RPLG-05) may be used for this purpose. However, situations may arise where the levying officer will decide it best to require the creditor provide an amended order for sale in lieu of written clarification. DESCRIPTION: In an action to foreclose a mortgage or deed of trust, the court may direct the sale of the real property and require the proceeds of the sale to the payment of costs of court, expenses of levy and sale, and the amount due the plaintiff, to include attorney s fees when such fees are provided for in the mortgage. [CCP 726(a)] When the judgment indicates that a deficiency judgment is waived or prohibited, the right of redemption does not apply. [CCP 726(e), (a)] When a right of redemption does not apply, the judgment creditor must wait 30 days after the date of levy (recording) before determining lienholder information. [CCP (h)] The prompting of the judgment creditor for lienholder information should be achieved in the same manner as in Category C. Form RPLG-03 may be used to prompt the creditor to provide lienholder information at the appropriate time. When a right of redemption does not apply, the 120 delay for giving notice of sale does apply. [CCP ] DISCUSSION: The judgment debtor is not entitled to claim an exemption for property levied upon under a judgment for the sale of property. [CCP ] However, the judgment debtor may claim available exemptions for property levied upon to satisfy damages or costs awarded in such a judgment. Therefore, if the judgment debtor files a claim of exemption, the levying officer should simply accept the claim and process it in the same manner as in execution, thus allowing the court to make a determination. CREDITOR S INSTRUCTIONS: The application for sale of a dwelling procedure is not applicable under a writ of sale. Therefore, it is not necessary for the creditor to provide dwelling statements. Since the writ and judgment for sale both contain the legal description, the creditor s instructions do not need to restate the legal description. SALE: Remove references to Section CCP and a right of redemption from the sale notice. The sale notice should reflect the minimum bid amount (if any) pursuant to CCP Distribute the proceeds as directed in the judgment for sale.

17 CATEGORY H: WRIT OF SALE Foreclosure of a mortgage or deed of trust. Real property or leasehold estate with term of more than two years remaining on the lease. Deficiency judgment may be ordered (right of redemption applicable). Deficiency Judgment: In mortgage law, imposition of personal liability on mortgagor for unpaid balance of mortgage debt after foreclosure has failed to yield full amount of due debt. [Black s Law Dictionary, Sixth Edition, 1991] If the decree of foreclosure is not clear, or is ambiguous as to whether a right of redemption is applicable, contact the creditor for written clarification on this issue. The Clarification of Sale letter (RPLG-05) may be used for this purpose. However, situations may arise where the levying officer will require the creditor provide an amended order for sale in lieu of written clarification. Note: The writ of sale delivered to the levying officer shall be accompanied by a certified copy of the judgment for sale. [CCP (c)] The judgment for sale may also be referred to as a decree of foreclosure. Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ. [CCP (b)] The contents of the writ must conform to the requirements of both CCP & (b). DESCRIPTION: The right of redemption is applicable. [CCP 726(e)] The 120 delay for giving notice of sale is not applicable. [CCP (b)(2)] Notice of sale may be given to lienholders (not mandatory). The judgment creditor is not required to wait 30 days after the date of levy (recording) before determining lienholder information. [CCP (b)(3)] In an action to foreclose a mortgage or deed of trust, the court may direct the sale of the real property and require the proceeds of the sale to the payment of costs of court, expenses of levy and sale, and the amount due the plaintiff, to include attorney s fees when such fees are provided for in the mortgage. [CCP 726(a)] If the decree of foreclosure of a mortgage or deed of trust on real property determines that a deficiency judgment may be ordered against the defendant, the real property (other than a leasehold estate with an unexpired term of less than two years at the time of levy) shall be sold subject to the right of redemption. [CCP (a) & CCP 726(e)] DISCUSSION: With limited exceptions, the Enforcement of Judgments Law abolishes the right of redemption and makes all sales absolute. [CCP ] However, the elimination of the right of redemption under writ of execution does not affect redemption rights under other statutes. For example, statutory redemption is preserved when, pursuant to a judicial foreclosure of a mortgage or deed of trust, the foreclosing creditor seeks a deficiency judgment against the judgment debtor. Under these circumstances, the sale of the real property is subject to the right of redemption. [CCP 726, CCP ] The wording contained in CCP limits the right of redemption to situations involving a mortgage or deed of trust. Similar language is absent from statutes governing foreclosure of a mechanics lien or assessments imposed by a homeowners association. For the right of redemption to exist, one is required to point to specific and clear authority in a code section granting such a right in a situation where the party is attempting to apply it. [Yancy v. Fink (1991) 226 Cal. App. 2d 1334, 1346] However, language authorizing a right of redemption is occasionally found in judgments based upon judicial foreclosures of mechanics liens, delinquent homeowners association assessments or special assessment tax liens. Under these circumstances, the levying officer should apply redemption rights as directed in the judgment. Assertions of irregularity in the proceedings or judgment (if any) should be made by any affected party in the action.

18 The judgment debtor is not entitled to claim an exemption for property levied upon under a judgment for the sale of property. [CCP ] However, the judgment debtor may claim available exemptions for property levied upon to satisfy damages or costs awarded in such a judgment. Therefore, if the judgment debtor files a claim of exemption, the levying officer should simply accept the claim and process it in the same manner as in execution, thus allowing the court to make a determination. CREDITOR S INSTRUCTIONS: The application for sale of a dwelling procedure is not applicable under a writ of sale. Therefore, it is not necessary for the creditor to provide dwelling statements. Since the writ and judgment for sale both contain the legal description, the creditor s instructions do not need to restate the legal description. When a right of redemption is applicable, the judgment creditor may provide a list the name(s) and address(s) of lienholders to be given notice of sale (if any). CCP (b)(3), the use of the word may makes the notice to lienholders an option of the creditor. Note: If lienholder information did not accompany the creditor s initial instructions, after you levy, MAIL notice to the creditor Form (RPLG-04), Request for Real Property Lien Holder Information on Real Property Subject to the Right of Redemption. Prepare the notice of sale after the creditor makes the appropriate response. The creditor is not required to wait 30 days after the date of recording before providing this information. [CCP (b)(3)] Include a statement as to whether, or not, the real property is a leasehold estate. [CCP (a)] If the real property is a leasehold estate, require that the creditor provide the expiration date of the lease. Note: A leasehold estate may also be referred to as an estate for years, or leasehold interest in real property. SALE: Notice of sale may be given upon entry of the judgment for sale of the property and the provision of Section delaying notice of sale does not apply. Notice of Sheriff s Sale Under Foreclosure (Form RPLG-07) should be used when the right of redemption is applicable. Whenever real property is to be sold subject to the right of redemption, the notice of sale shall state... - that the property will be sold subject to the right of redemption, and - the amount of the secured indebtedness with interest and costs. The redemption period during which property may be redeemed is... Three months after the date of sale if the proceeds of the sale are sufficient to satisfy the secured indebtedness with interest and costs of action and of sale. One year after the date of sale if the proceeds of the sale are not sufficient to satisfy the secured indebtedness with interest and costs of action and of sale. [CCP ]

19 When the purchaser of an interest in real property sold subject to the right of redemption pays the amount due, the levying officer conducting the sale shall execute and deliver a certificate of sale to the purchaser and record a duplicate of the certificate of sale in the office of the county recorder. The Sheriff s Certificate of Sale on Writ of Sale (Form RPLG-09) should be used for this purpose. The certificate of sale must include... The price paid for each distinct lot or parcel of real property sold subject to the right of redemption. The total price paid. A statement that the property is subject to the right of redemption, indicating the applicable redemption period. [CCP ] If property is sold subject to the right of redemption, the levying officer must serve notice of the right of redemption on the judgment debtor. Form (RPLG-15) should be used for this purpose. Service shall be made personally or by mail. The notice of the right of redemption shall indicate the applicable redemption period. [CCP ] The sale notice should reflect the minimum bid amount (if any) pursuant to CCP Distribute the proceeds as directed in the judgment for sale. Form (RPLG-12) Return on Writ of Sale Foreclosure of Real Property should be used. Other forms that may become applicable to the right of redemption are: - (RPLG-16) Request Return of Certificate of Sale or Certificate of Redemption; - (RPLG-17) Sheriff s Certificate of Redemption.

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21 CATEGORY I: WRIT OF SALE Foreclosure of a special assessment property tax or Mello-Roos tax lien. Note: The writ of sale delivered to the levying officer shall be accompanied by a certified copy of the judgment for sale. [CCP (c)] The judgment for sale may also be referred to as a decree of foreclosure and order for sale. Proceed only if the levy (recording, service, mailing, posting of the writ and notice of levy) can be completed prior to the expiration of 180 days from the issuance of the writ. [CCP (b)] The contents of the writ must conform to the requirements of both CCP & (b). DESCRIPTION: The legislative body of a city, county or special district may take action to equitably protect all bondholders if it appears that there is danger of an ultimate loss accruing to the bondholders by reason of delinquent installments that secure previously issued bonds. The legislative body may order that any assessments accruing under applicable taxation provisions be collected by an action brought in the superior court for the foreclosure of such liens. [Streets & Highways Code 8770 & 8830] The resulting judgment for foreclosure may order that the real property to be sold on execution as in other cases of the sale of real property. However, when the real property is not a dwelling for not more than four families, a reduction in time for giving notice of sale will apply. Under these circumstances, the judgment will direct that notice of sale be given any time after the expiration of 20 days (instead of 120 days) after the date notice of levy was served on the judgment debtor(s). When this reduction in time for giving notice of sale is applicable, the 30-day time period referenced in subdivision (h) of CCP shall be reduced to 10 days. [Streets & Highways Code 8832 and Government Code ] EXAMINE the order for sale to determine if these time reductions apply. DISCUSSION: Occasionally, language authorizing a right of redemption may be found in a judgment based upon a judicial foreclosure of a special assessment tax lien. Under these circumstances, the levying officer should apply redemption rights as directed in the judgment. Any assertions of irregularity in the proceedings or judgment (if any) should be made by any affected party in the action. However, wording contained in Section of the Code of Civil Procedure limits the right of redemption to situations involving a mortgage or deed of trust. For the right of redemption to exist, one is required to point to specific and clear authority in a code section granting such a right in a situation where the party is attempting to apply it. [Yancy v. Fink (1991) 226 Cal. App. 2d 1334, 1346] The judgment debtor is not entitled to claim an exemption for property levied upon under a judgment for the sale of property. [CCP ] However, the judgment debtor may claim available exemptions for property levied upon to satisfy damages or costs awarded in such a judgment. Therefore, if the judgment debtor files a claim of exemption, the levying officer should simply accept the claim and process it in the same manner as in execution, thus allowing the court to make a determination. CREDITOR S INSTRUCTIONS: The application for sale of a dwelling procedure is not applicable under a writ of sale. Therefore, it is not necessary for the creditor to provide dwelling statements. Since the writ and judgment for sale both contain the legal description, the creditor s instructions do not need to restate the legal description.

22 SALE: Remove any references to Section CCP and a right of redemption from the sale notice. A minimum bid is applicable pursuant to Streets and Highways Code 8832 and Govt. Code The sale notice should contain disclosures regarding minimum bid requirements. The real property may not be sold unless the amount paid on the bid equals or exceeds... - the amount of the judgment with costs and interest; - costs and interest on the judgment accruing after issuance of the writ; - the levying officer's costs; and - any other amounts required by law to be bid in order that the lot or parcel may be sold. Other minimum bid requirements are established by CCP The amount bid on the real property must also exceed the total of the following amounts: - preferred labor claims; - state tax liens (as defined in Govt. Code 7162) that is superior to the creditor's lien (make written request that the creditor provide you with the current amount of any state tax lien).