One of the most powerful tools used by debt collectors is a writ of execution. A writ of execution is a court order that allows creditors to seize property or money from the judgment debtor. In this article, we’ll explain what writs of execution are, how they work, and what you need to know to effectively stop them from taking everything you own.
What is a Writ of Execution?
A writ of execution is a court order that directs a sheriff, constable, or other law enforcement officer to seize property or money from the judgment debtor. The purpose of the writ is to satisfy a judgment that has been entered against the debtor. Once the property or money has been seized, it is typically sold at auction and the proceeds are used to pay off the judgment.
How Do Writs of Execution Work in Utah?
In Utah, a writ of execution is typically issued by the court clerk after a judgment has been entered against the debtor. The writ is then delivered to the sheriff, constable, or other law enforcement officer, who is responsible for enforcing it. The officer will typically visit the debtor’s property and seize any non-exempt assets that can be sold to satisfy the judgment. The proceeds of the sale will pay the costs of the sale first and then to pay the creditor. Any remaining money will be paid to the debtor.
What Types of Property Can Be Seized in Utah?
Under Utah law, certain types of property are exempt from seizure under a writ of execution. These include:
- The debtor’s primary residence, up to a certain value
- One vehicle, up to a certain value
- Some household appliances such as clothes washer and dryer, refrigerator, freezer, stove, microwave oven, and a sewing machine
- Certain types of personal property, such as clothing, household furnishings, some firearms, bedding, and tools of the trade
- Certain types of income, such as social security benefits, disability benefits, and child support payments
It’s important to note that exemptions can vary depending on the circumstances of the case, so it’s always best to consult with an attorney if you’re unsure about what property can be seized.
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Specificity is Required
A writ of execution needs to be specific enough to identify the property that is to be seized by the sheriff or constable. The writ must identify the debtor, the amount of the judgment, and the property to be seized with sufficient specificity so that the sheriff or constable can locate and seize the property without confusion or mistake.
The description of the property to be seized must be accurate and complete, so that there is no ambiguity as to which property is to be taken. In cases where the description of the property is vague or unclear, the sheriff or constable may be required to obtain a new writ or seek clarification from the court before proceeding with the seizure.
Claiming an Exemption
If you believe that the property being seized is exempt from execution under Utah law, you must claim the exemption in writing and file it with the court and the sheriff within 10 days after service of the Writ of Execution. This request is called a Reply and Request for Hearing. A blank Reply and Request for hearing should have been served to you with the writ of execution.
The claim of exemption must specify the basis for the exemption and provide evidence to support the claim. Utah law provides for various exemptions, such as exemptions for certain types of personal property, retirement accounts, and homesteads.
If the claim of exemption is filed timely, the sheriff or constable must release the property unless the creditor files a motion to challenge the exemption. In that case, the court will hold a hearing to determine whether the property is exempt from execution.
It’s important to note that failure to claim an exemption within the time period specified by law may result in a waiver of the exemption. If you have any questions about claiming an exemption, you should consult with an attorney.
The creditor may only seize property that the judgment debtor owns. If the creditor suspects that someone other than the debtor has an interest in the property, the creditor should identify that person and serve him or her with a copy of the Writ of Execution and other relevant papers.
If you are in possession of someone else’s property that might get mixed up with your property during the execution be sure to inform the constable or sheriff what property is not yours. The constable cannot take someone else’s property if you have no ownership interest in that property.
The other person may need to file notice with the court to stop the writ of execution as it pertains to their property held in your possession. Do not delay if this happens in your case. You only have 14 days to file the Reply and Request for Hearing to claim exemptions or assert third party ownership interests.
In Utah, debtors have the right to specify a preference about which property is taken first to satisfy a judgment if there is more property than necessary to satisfy the amount due. Do not simply let the constable take whatever he wants. If you have any preferences on what is taken first assert your right to choose.
Seized Items must be Inventoried
Within 14 days after service of the writ of execution, the officer is required to return the writ of execution to the court with proof of service. If property has been seized, the officer must include a detailed inventory of the property and whether the property is held by the officer or the officer’s designee.
Is There a Homestead Exemption in Utah?
In Utah, real property is partially protected by the homestead exemption. The amount of the homestead exemption in Utah is $42,000.00 per person if the property is your primary personal residence. If the property is not your primary personal residence the homestead exemption is only $5,000.00 per person.
The Utah homestead exemption also protects the proceeds from the sale of your primary personal residence for up to one year after the sale. This protects the proceeds of the sale of your home so you can use those proceeds to purchase a new place to live.
How Do I Claim the Protections of the Utah Homestead Exemptions Act
To preserve your rights under the Utah Homestead Exemptions Act you must file a declaration of homestead with the court and serve a copy on the Plaintiff’s attorney.
The declaration of homestead must contain the following information:
- Statement of Entitlement
The Declaration of Homestead must contain a statement that the claimant is entitled to an exemption and if the claimant is married a statement that the claimant’s spouse has not filed a declaration of homestead.
- Description of the Protected Property
The Declaration of Homestead must also contain a description of the property subject to the homestead protections.
- Estimate of Cash Value
Your Homestead Declaration must contain a good faith estimate of the cash value of the protected property.
- Amount of the Homestead Claimed
The Homestead Declaration must include a statement specifying the amount of the homestead claimed and stating the name, age, and address of any spouse and dependents claimed to determine the value of the homestead.
Does the Utah Homestead Exemption Apply to Mobile Homes?
A mobile home that is your primary personal residence is absolutely protected by the Utah homestead exemption to the same degree as any fixed real estate. That means your mobile home qualifies for a $42,000.00 per person exemption as long as it is your primary personal residence. Again, the proceeds from the sale of your mobile home also continue to be protected under the homestead exemption for one year after the sale.
If a debtor fails to pay a valid judgment a writ of execution may be an effective tool for collecting on that judgment. However, it’s important to understand how the process works and what types of property can be seized. Consulting with an attorney can help ensure that any writs that affect your rights fall within the bounds of the law.