By Scott M. Ellerby
Successfully enforcing a judgment against real property in Washington is largely a matter of paying close attention to RCW Title 6, Chapter 17, and the specific steps and preliminaries required. Strict compliance with the statutory requirements is necessary, form prevails over substance, and many traps for the unwary exist.
The law requires a judgment creditor to first pursue personal property assets if sufficient amounts exist to satisfy the judgment. Due to space limitations, this article can only address the major considerations in a summary manner.
Execution against the real property of a judgment debtor is commenced by the issuance of a court order, entitled Writ of Execution, to the sheriff of a particular county directing the seizure and sale of the property of the judgment debtor not exempt from execution. Only the Superior Courts may issue writs of execution against real property, making it necessary to transfer a District Court judgment to the Superior Court if a real property execution is desired. A judgment is effective for an initial 10-year period and can be extended by application prior to expiration for an additional 10 years.
One trap for the unwary is that every component part of the execution must be completed prior to expiration of the judgment, including the levy (seizure by the sheriff), the sale, and the sale confirmation. Another practice tip is to verify that the judgment is properly recorded in the Superior Court clerk’s judgment docket prior to requesting issuance of the writ of execution. It is not uncommon for a lawyer to find that a pleading entitled “Judgment,” signed by the court and filed with the clerk, was not entered in the judgment docket because of a missing or incomplete judgment summary or some other technical deficiency.
No writ may issue until after five court days following entry of the judgment. To obtain a judgment lien on property qualifying as a homestead, it is necessary to record the judgment with the county auditor.
Due Diligence Affidavit
Prior to requesting issuance of the writ of execution, the judgment creditor must file an affidavit stating that due diligence has been exercised to ascertain if the judgment debtor has sufficient non-exempt personal property to satisfy the judgment, identifying the items and location of personal property, whether the personal property is exempt, and whether any real property is being occupied or claimed as a homestead.
The “due diligence” required of the judgment creditor includes physically inspecting property, interviewing occupants and neighbors, and searching the county real property records. The most common way for judgment creditors to satisfy the due diligence requirement is to examine the judgment debtor in supplemental proceedings concerning personal property and real property assets, and exemptions.
In addition to filing with the court, the judgment creditor must mail a copy of the due diligence affidavit to the debtor, allowing the debtor to challenge its contentions. Once the writ of execution is issued by the clerk, the judgment creditor takes the writ of execution to the sheriff for service on the judgment debtor with copies of specified exemption statutes. Service is either by personal service or by regular and certified mail.
Execution May Issue Only from the Court Where Judgment Was Originally Entered
Practice Tip: A common mistake made by counsel for judgment creditors is to file a transcript of a judgment entered in another county and then have that county’s court clerk issue execution writs. Execution can lawfully issue only from the Superior Court in which the judgment was entered, and the Superior Court issues writs of execution to the sheriff of the county where the real or personal property is located.
Court clerks will not always pick up on the fact that the writ of execution is sought on a judgment that was transcribed from a different county.
Pre-Writ of Execution Communications with the Sheriff’s Civil Division
Although generally similar in approach, each sheriff’s office has its own requirements for levying writs of execution and conducting sheriff’s sales. Counsel contemplating pursuing a writ of execution on real property should contact the civil division of the sheriff’s office in the county where the real property is located early in the process in order to learn the particular requirements of that office.
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