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Collection By Levy

By: Jim Busch

One method of collection rarely used within the State of Georgia is the levy. A levy is the execution or collection of a judgment by the appropriate Sheriff, Marshal or other authorized officer by seizing real or personal property of the debtor.

In order to perform a levy, a creditor must first obtain a judgment against the debtor. A levy typically may not be performed for a period of ten days following the entry of judgment. Once a valid judgment has been obtained, a Writ of Fi.Fa. must be obtained from the presiding court. Upon receipt of the Writ of Fi.Fa., the creditor may then provide the appropriate Sheriff, Marshal or other authorized officer with the Writ of Fi.Fa. and instruct that official to seize sufficient real and personal property to satisfy the judgment.

Usually, the authorized officer will then go to the debtor and advise the debtor of the proposed levy to obtain payment or attempt to convince the debtor to make arrangements for payment. If the officer can not accomplish the latter, he or she will determine whether the debtor appears to have possession of and title to property that can be used toward satisfying the judgment. If property can not be located, the officer will make an entry of “nulla bona” on the face of the Writ of Fi.Fa. and return it to the creditor’s attorney. If property can be located, the officer will usually seize it and cause it to be moved to a storage facility until the requisite notice can be given for the next scheduled judicial sale.

Creditors should note that the officer will be reluctant to seize the debtor’s property if there appears to be any question as to its ownership. Often individuals will contend that furniture and other household goods belong to a spouse, friend or are rented. Commercial debtors often contend that their inventory is on consignment or otherwise encumbered or leased.

Since the officer responsible for the levy is also responsible for wrongful levies, it is likely that he or she will require the creditor’s attorney to specifically identify the property that is to be levied. Once this is done, the liability for an improper levy is directly upon the Plaintiff. When the creditor is called upon by the levying officer to designate the property upon which a levy is to be made, he or she should bear in mind that a mistake in seizing the debtor’s alleged property could be very costly. If a creditor wrongfully seizes property of another, they may take the property subject to the encumbrances, i.e. boat loan, or they may be subject to liability for damages incurred by the true owner. At a minimum, the creditor should check the Uniform Commercial Code financing statements on record and determine if any of the debtor’s property is officially encumbered.

The fees for conducting a levy include those of the levy official, moving and storage company, and auctioneers. Unless the creditor specifies otherwise, the levy officer will usually arrange for an independent moving company to pick up the seized property and transport it to a storage facility. It is important to understand that judicial sales do not typically obtain top dollar for the property sold. On many occasions, the costs incurred to perform the levy have exceeded the price brought for the goods at a judicial sale. Because judicial sales seldom bring a reasonable return, it is often in the creditors best interest to be present at the sale in order to make protective bids which will result in title passing to the creditor. The creditor can then sell the property at a later date for a more reasonable price.

Assuming there are no liens or encumbrances on the levied property, the amount bid less fees charged for the levy, will be credited against the balance owed on the judgment. If the amount bid is insufficient to satisfy the judgment, the creditor will retain the right to pursue the debtor for the remaining balance.

In the State of Georgia, a levy may be an effective method of collection, but like many other methods, the creditor must know how and when to use a levy to collect against a debtor. Levies are most effective when the debtor clearly owns various items of personal property which will result in payment of reasonable sums at auction. As with any collection technique, information about a debtor or its property is always helpful in the ultimate collection and to make informed decisions as to which method of collection will be most productive.

Mr. Busch is an attorney specializing in commercial and construction litigation for Busch, Reed, Jones & Leeper, P.C. in Marietta, Georgia

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